Lewis v City of New York

[*1] Lewis v City of New York 2008 NY Slip Op 50609(U) [19 Misc 3d 1109(A)] Decided on March 26, 2008 Supreme Court, Bronx County Victor, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 26, 2008
Supreme Court, Bronx County

Alphonso Lewis, as Administrator of the Estate of Kenneth Thomas, deceased, and as Guardian of his infant children, Kyle Kalvin Thomas and Kenneth Kallilthomas, Jr. and Vermaneta, Lewis, wife of the decedent, Plaintiffs,

against

The City of New York and Police Officer "John" (First Name Not Known) Wanamaker (Shield No. believed 4584), Glenford R. McCallum, Donovan McLean, JRC Transportation, Inc., J & C Transportation, Inc., West Indian Carnival Associations, Inc., West Indian American Day Association, Jam City Production, and British Virgin Islands, Defendants.



23759/1997



Plaintiff: Bernstein & Bernstein Defendants: White, Fleischner & Fino-The City of New York

Michael Cardozo- P.O. Wanamaker

Fogarty, Felicione & Duffy-McCallum and McLean

JRC Transportation-Silverson, Pareres & Lombardi

West Indian Carnival Association-Alan I. Lamer

Jam City Productions-Richard Tunick

Transport International-Herzfeld & Rubin

Paul A. Victor, J.

RELIEF SOUGHT

Defendants City of New York, and P.O. Wanamaker each move for summary judgment and dismissal of all claims based, among other things, upon the assertion of sovereign immunity.The defendants McCallum and McLean and the West Indian Carnival Association each move for summary judgement and dismissal of the plaintiff's complaint against them asserting, among other things, that they were following the commands of a police officer, and were not at fault for the happening of the accident; and they assert that the decedent, through his own reckless actions, was the sole cause of the accident.

ISSUES PRESENTED

(1) Is sovereign immunity a valid defense to a tort claim arising out of alleged reckless conduct committed by a police officer during the operation of a commandeered vehicle and/or an alleged traffic/crowd control assignment?

(2) Is this a "special duty" case; and, if so, has the plaintiff provided sufficient prima facie evidence to establish that a "special relationship" existed?

(3) Does the sovereign immunity defense also apply to the defendants McCallum and McLean (private citizens) who alleged that they were compelled to act by reason of a command to them by a law enforcement officer?

(4) Has the plaintiff provided sufficient prima facie proof to establish that the deceased's civil rights were violated by, among other things, an alleged assault and battery ?

(5) Has the plaintiff provided sufficient prima facie proof to establish that the negligent and/or reckless conduct committed by each moving party was a contributing cause of the occurrence?

THE ACTION AND THE MOVING PARTIES

This is a wrongful death action brought by plaintiff Alphonso Lewis, as Administrator of the Estate (and Guardian for the children) of Kenneth Thomas, deceased, who was allegedly wrongfully run-over by a tractor trailer during the West Indian American Day Parade held in [*2]Brooklyn on September 2, 1996. A cause of action forloss of services on behalf of plaintiff Vermaneta Lewis, the alleged wife of Kenneth Thomas, deceased, was discontinued with prejudice. The complaint alleges causes of action for negligence, recklessness, assault, battery and civil rights violations allegedly committed by the defendants.

Only five of the remaining named defendants have joined in the motions to dismiss now being considered (i.e., the municipal defendants, the City of New York and Wanamaker; the owner/operator defendants, McCallum and McLean; and the West Indian Day Association and the West Indian Carnival Association, jointly referred to as "WICA")[FN1].

The defendant Donovan McLean was the operator of the tractor-trailer; and the defendant Glenford R. McCallum, was the owner of, and passenger in, the tractor which was pulling a leased flatbed trailer (being used as a parade float).

The defendants, the City of New York and New York City Police Officer Wanamaker are named as defendants, because, among other things, of the alleged negligent and/or reckless conduct of defendant Wanamaker in ordering the operator of the tractor-trailer to proceed into and through an intersection despite known and evident danger to the multiple pedestrian parade revelers who had surrounded the vehicle.

The WICA defendants are alleged to have sponsored the parade and to have obtained a permit to operate the parade; and thus are alleged to have control over the parade route (including the place of the accident alleged herein)

THE ACCIDENT [FN2]

Pre-Incident

The accident underlying this lawsuit took place at approximately 6:00 p.m. on September 2, 1996 during the West Indian American Day Parade near Eastern Parkway and Nostrand Avenue in Brooklyn, New York. At that time, Kenneth Thomas, the deceased, was run over by a flatbed tractor- trailer which was being used as a parade float and was being operated by the defendant McLean. The float was carrying a musical group called "The Burning Flames", as well as a number of parade spectators.

The parade took about five to six hours, and by all accounts, the parade route was extremely crowded with spectators who surrounded numerous slow-moving tractor-trailers which carried various musical acts. The trailer had been modified with six foot high wooden rails mounted on the side, as well as wooden platforms on each side above the tires, because it was [*3]customary in this parade to allow spectators to ride on the side of the trailer.

At the time of the incident, the tractor-trailer was being driven by defendant Donovan McLean, who only had a learner's permit which required the presence of a licensed operator. McCallum, the owner of the vehicle , was a licensed operator and had himself driven the vehicle during portions of the parade, and at the time had turned the driving duties over to McLean. Just prior to the accident the vehicle was stopped in the intersection and defendant McLean was unable to proceed forward because the vehicle was surrounded and overwhelmed with the pedestrian parade revelers, some of whom were riding on the trailer; and one of whom appears to have been the deceased Kenneth Thomas, who apparently was attempting to get on or off the vehicle as it began to move.

As it was time for the parade to come to an end, Chief Brennan, who was allegedly in an agitated state, ordered defendant police officer "John" Wanamaker and his partner, Police Officer Brown, to get the truck moving through the crowded intersection. Wanamaker, who was also highly agitated, climbed onto the driver's side of the tractor and while blocking its rearview mirror, commanded defendant McLean to move forward despite the danger. According to McCallum, Wanamaker ordered the truck to proceed forward despite the fact that Officer Brown had not yet been able to clear the large crowd surrounding the vehicle. McCallum testified that Wanamaker reached in and blew the truck's air horn told him that he should " hurry up, hurry up, run the motherfuckers over"; and that McLean then increased his speed. McLean asked Wanamaker to stop blowing the air horn since it effected the operating system of the truck, but Wanamaker, while still screaming, blew it several more times. McLean then moved the truck forward at first at a slow speed while Officer Brown was in front of the truck attempting to move people out of the way. At this time McLean's view of the trailer and pedestrians in the rear was still blocked by Officer Wanamaker. After moving a short distance, and in response to Wanamaker's command, McLean increased his speed, and started to go faster.[FN3] but people began yelling that someone had been hit, and he came to a stop. Testimony by defendant McLean as to this part of the episode was provided at a deposition, as follows: "[I heard] the crowd yell stop, stop and the officer keeps saying go, go, go, so, you know, I am listening and figuring that he is the law enforcement man, he should know what is going on, there could be false alarms and if he is instructing me to go so I am still doing the same rate of speed and then he said and the crowd got louder and I seen people start actually like running away and then Glen [McCallum] hit me on the shoulder he said to stop, stop, and the officer said still go, go, go and I just pulled off the brake, I just ignored him then and I stopped, I didn't want to listen, as soon as we stopped he jumped off the truck and went down in the crowd and Glen went right after him and stayed with him and grabbed him and got his badge number and everything and, you know, we still didn't [*4]know that the truck killed anybody."

Post Incident [FN4]

Plaintiff argues that the following post- incident actions of Officer Wanamaker, and Chief Brennan are evidence of a consciousness of their wrongdoing, and an attempt by them to cover up their actions. In addition, it is claimed that the post-incident investigation revealed additional admissible evidence that the conduct of Officer Wanamaker was a substantial factor in causing the accident and death of Kenneth Thomas.

According to McCallum immediately after the truck came to a stop and the victim was seen lying on the ground, Officer Wanamaker attempted to "blend into the crowd" but was followed by McCallum who then obtained his shield number and name. However, Officer Wanamaker testified that he went directly to the decedent about 15 seconds after being advised of the incident; that he found the decedent "underneath the truck almost between where the trailer starts and where the trailer ends"; that he and Officer Brown stayed with the decedent for approximately 3 minutes but Chief Brennan appeared on the scene and instructed them to leave the scene and direct traffic. He testified further that he made no entry in his memo book; that he did not fill out any Aided or Accident Report despite being involved in the incident as well as the being first officer at the scene; and that no one from the NYPD asked him to give any information regarding this occurrence until months later when he was asked by NYPD Internal Affairs to give testimony at a GO-15 hearing. A transcript of that testimony is now missing and cannot be found.[FN5]

In any event, defendant McLean testified that immediately after the accident a high ranking officer wearing a cap with a gold badge and gold lining (Chief Brennan) came over and asked for his driver's license, and, when he heard it was only a learner's permit, he was in the process of detaining McLean when another, shorter police officer came over and spoke privately to the higher ranking officer. The higher ranking officer then took off his cap and left the scene; and the other officer then approached McLean and is alleged to have said: "if anything comes [*5]out in court you didn't see anything... the man got trampled...."

In the Aided Report prepared by police Officer Darrell Haynes (who was assigned by Chief Brennan to accompany the decedent to the hospital) it is stated that decedent " was found unconscious face up... 5 feet adjacent to the driver's side of the stopped float/tractor trailer".[emphasis added.] Decedent was taken by EMS to Kings County Hospital where he was DOA. Officer Haynes was apparently not authorized or requested to conduct an investigation, and he was apparently given no information by anyone concerning the events. Thus, in his report, no mention was made, as noted by the testimony of Officer Wanamaker, that the decedent was first found underneath the truck, nor was any mention made of the tractor trailer's involvement in the episode.

Although assigned by Chief Brennan to make out the Aided Report and accompany

the decedent to the hospital, neither Chief Brennan nor any other officer at the scene advised Police Officer Haynes as to the events leading up to the accident or the involvement of the tractor trailer. However, in an Accident Report ( purportedly signed by Police Officer Haynes on the day of the accident) it is indicated that the decedent was struck and run over by the tractor trailer. However, there is a serious dispute as to when this report was really made, since this information was not first officially reported until after it was discovered days later by an Accident Investigation Squad Officer (Detective Schreiber), who then contacted a squad Detective (Zuffi) who was conducting a parallel investigation. Detective Schreiber, who was assigned to the case on September 3, 1996, said it was unclear to him as to the involvement of the truck because of the lack of information in the Complaint and the absence of a police accident report. It was not, until he viewed the body at the morgue and observed, among other things, "the presence of distinct tire prints on the victims back"did he realize that a vehicle was involved. When these "new facts" were conveyed to Detective Zuffi and a further investigation was conducted, the Aided card, which had been prepared by Officer Haynes, was canceled; a new Complaint and Follow-up Report and an Accident Report were prepared; and the investigation was officially referred to the Accident Investigation Squad. Ultimately the investigation revealed that Kenneth Thomas was run over by a truck and that the accident was the cause of death; and the matter was referred to the police Internal Affairs Bureau for further investigation. Detective Schreiber summarized his findings as follows: " The investigation into this case has been completed. All parties/witnesses have been interviewed and their statements have been recorded, with the exception of P.O. Wanamaker, whose participation in this accident is undetermined at this time. This matter has been referred to Lieutenant Martini of the Internal Affairs Bureau, group 21, for his continued investigation. Based on the information on hand, it is the opinion of the undersigned that the causative factor of this accident was that the victim of this accident, based on witness statement, was attempting to board a moving vehicle of which the operator of said vehicle had no knowledge of. When the operator of the vehicle increased the speed, the victim lost his grip on this vehicle and fell underneath of the drivers side rear wheels of the tractor portion of this vehicle. The undersigned finds no criminality on the part of either the operator or the victim."

As part of the official investigation by the police department, defendant Wanamaker gave what is commonly referred to as a "G.O.-15 statement" on October 24, 1996. These statements [*6]are customarily taken on audio tape and then transcribed. These records containing Officer Wanamaker's statement cannot now be located. In any event, no action was taken against defendant Wanamaker or any other police officer.

WAIVER OF SOVEREIGN IMMUNITY

HAVE THE EXCEPTIONS ENGULFED THE RULE ?

With the passage of Court of Claims Act §8, it appeared that the general rule was "waiver"; and sovereign immunity was the exception. (See, Bloom v. Jewish Board of Guardians, 286 NY 349 [ 1941].)

Some have argued that, via Section 8, "the state only partially waived its sovereign immunity, such that it is subject to that liability for which an individual or corporation would have been liable". [NY Jur. 2d, Government Tort Liability §12]. In other words, these authorities argue that since individuals and corporations do not engage in any governmental functions, it never was the intention of the legislature to waive immunity for the exercise of such governmental functions. Thus, according to this theory, torts arising out of a governmental function are actionable only if a special relationship can be established; and those arising out of a proprietary function are actionable without any pre conditions.

In any event, whether as a result of the above theory, or as a result of all of the other above judicially expressed limitations , it appears that the "exceptions" are now the general rule. As "explained" by the Court of Appeals in a recent decision (See, Kovit v. City of New York and Lazan v. County of Suffolk, supra , each reported at 4 NY3d 499 [2005])"municipalities generally enjoy immunity from liability for discretionary activities they undertake through their agents, except when plaintiffs establish a special relationship' with the municipality" (emphasis added; Kovit/Lazan at 505).

In order to best ascertain the appropriate legal principles to be applied to the circumstances presented in this tort action this Court must consider the common-law as well as review a series of "complex" decisions of the New York Court of Appeals which appear to have created substantial limitations upon what once appeared to be an unconditional and absolute statutory waiver of sovereign immunity.

The Common Law and Statutory Waiver

At common law the Sovereign was absolutely immune from any and all tort claims. However, by Chapter 860 of the Laws of 1939, New York State (and its political subdivisions) waived the defense of sovereign immunity, subject only to the statutory procedural requirements dealing with notice of claims requirements. ( NY Ct of Cl. Act §§ 8 and 10)[FN6]. By this enactment, [*7]our Sovereign explicitly declared that it "assumes liability and consents to have the same determined in accordance with the same rules as apply to actions in the Supreme Court against individuals or corporations"[FN7].

The Rules for statutory construction and interpretation state that "statutes in derogation of the sovereignty of the state must be strictly construed and a waiver of immunity from liability must be clear". (McKinney's Cons.Laws of NY, Book 1, Statutes § 115; emphasis supplied). However, said Rules of Construction also provide that "the interpretation of such statutes must not be so narrow as to defeat the purpose thereof";( Id §291; emphasis supplied). In addition, the Rules teach that remedial statutes are liberally construed to spread their beneficial result as widely as possible ... [so] as to give effect to the intention of the lawmakers that is, to effect or carry out the reforms intended and to promote justice...." (id §321; emphasis supplied).

The Court of Appeals, however, ( for "policy" reasons ) has consistently applied a strict statutory construction which appears to have diminished the remedial character of § 8 of the Court of Claims Act. As will be observed below, no other issue has so consistently divided that court than the issue of the reach and extent of sovereign immunity in tort actions.

In any event, it is noted that the waiver statute does not provide any defenses or exceptions. Section 8 does not make a distinction between governmental and proprietary functions of the sovereign nor does it distinguish between discretionary and ministerial acts of governmental employees or the duty of such governmental employees to the "public as a whole" as opposed to a duty to an individual member of the public. The words "special relationship", "special duty", "misfeasance", "nonfeasance", "discretionary" and "ministerial" are not found in the statute nor in any of the legislative statements and documents made in support of what appears to be an unconditional and universal waiver of sovereign immunity. On the contrary, the statute explicitly states that with reference to tort claims, New York State consents to being treated in accordance with "the same rules that apply... to individuals and corporations"; and notably there are no such special exceptions which apply to, or prohibit, such actions against individuals and corporations.

The limitations on actions against the Sovereign were not only court-created, but also incrementally expanded over the years, not by the Legislature, which has remained resoundingly silent, but by the New York Court of Appeals, via a series of decisions (many with strong, some vitriolic, dissents) which have established a whole subset of distinct defenses, which have, in essence, partially reinstated sovereign immunity after the Legislature had ostensibly abolished it. (See, for example, Steitz v.City of Beacon, 295 NY 51 [1945] [a 4-2 decision with Desmond, J. dissenting][ City not liable for damage resulting from its failure to create and maintain a proper fire protection system]; Schuster v. City of New York, 5 NY2d 75 [1958][ a 4-3 decision [*8]with three separate dissenting opinions][ City liable for death of an informant for failing to provide police protection]; Motyka v. City of Amsterdam, 15 NY2d 134[1965][ a 5-1 decision with Desmond, J., dissenting][ City not liable for damage caused by fire, after fire marshal failed to follow up his prohibition to tenant to cease use of oil stove.]; Riss v. City of New York, 22 NY2d 579 [1968][ a 6-1 decision with Keating, J. dissenting][ City not liable for injuries to plaintiff for failure to provide police protection]; O'Connor v. City of New York, 58 NY2d 184 [1983][ a 4-3 decision with Wachtler, J. dissenting][ City not liable for damage caused by explosion despite improper certification by City Inspector of newly installed gas piping system]; DeLong v. County of Erie, 60 NY2d 296 [1989] [County liable for failure to provide police protection as a result of negligence in operation of the 911 system]; Kircher v. City of Jamestown, 74 NY2d 251 [1989] [a 5-2 decision with two separate dissents] [City not liable for failure to provide police protection to particular individual]). Lauer v. City of New York, 95 NY2d 95 [2000] [dissents by Judges Smith and Bellacosa] [City not liable despite the harm caused by a negligent ministerial act of the Medical Examiner]). There are many other such controversial cases !

A reading of these decisions makes it abundantly clear that the primary, if not the sole, reason for the judicial creation of these exceptions to the statute "is one of public policy, to protect public funds from being diverted from governmental purposes". (O'Connor v. City of New York, 58 NY2d 184 [1983]; 120 ALR 1376[1939]). However, as noted by one commentator: "it [is] difficult to apply existing rules in a way that avoids results that are mutually inconsistent and, at times, at odds with accepted principles of corrective justice".[FN8]

As seen from the multiple forceful dissenting decisions in the cases cited above, Judge Hancock is not alone in this observation. For example, in Motyka, supra ., Chief Judge Desmond, in his potent dissent exclaimed that: "Any court-created tort immunity rule should be forthrightly abandoned when its injustice and its unreality are so evident as to produce exceptions, interpretations and inconsistencies galore...The time has come to remove from our law all the remaining vestiges of governmental immunity. We should be done with exceptions and incongruities. We should cut through the wilderness of special instances and say, as we did on hospital immunity in Bing v.Thunig, (2 NY2d 656 [1965]) that municipal non-liability for injury causing breaches of duty, is archaic and unjust". (Emphasis added; 15 NY2d at 140).

In sharp criticism of the "public duty" and "governmental function" exceptions, Judge Keating in Riss v. City of New York, supra . , observed and opined that: "It is not a distortion to summarize the essence of the City's case here in the following [*9]language: Because we owe a duty to everybody, we owe it to nobody'. Were it not a fact that this position has been hallowed by much ancient and revered precedent we could surely dismiss it as preposterous" (22 NY2d, supra ., at 585)

He declared further that the City's "fear of financial disaster is a myth", and stated "if a private detective acted carelessly, no one would deny that a jury could find such conduct unacceptable"; and then asked: " Why then is the City not required to at least the same minimal standards of professional competence which would be demanded of a private detective ?" ( 22 NY2d, supra at 584).

In a dissenting opinion in O'Connor v. City of New York, supra , Judge Wachtler, joined by Judges Fuchsberg and Meyer, also argued that "a plaintiff's right to recover for negligently inflicted injury should not depend upon whether the plaintiff belongs to a legally accepted special class.'"(58 NY2d, supra at 192.) He proclaimed further that:

"This judicially created caste system represents an indefensible exception to the basic principle of negligence law that a plaintiff is entitled to compensation when he has been injured by the defendant's failure to observe the standards of reasonable care under the circumstances. In addition, efforts to decide tort liability by placing, or attempting to fit litigants into rigid categories breeds exceptions and often produces incongruous, unfair and arbitrary results. The need for reform in this area has been noted in the past by other members of this Court."[ Emphasis added; 58 NY2d, supra . at 192-193]

As observed by Judge Hancock, in his Law Review Article, although "these Judge-made rules are effective as a means of limiting tort liability of municipalities in specific situations" and "in that sense the rules work"; "they do at times, as some have suggested, lead to decisions that appear ad hoc and unrelated to any social theory or principled reason in fairness, justice or moral doctrine". [ Article: Municipal Liability through a Judge's Eyes, 44 Syracuse Law Review 925].

It has oft been observed by the majority jurists in the above cases that the Legislature has done nothing, despite numerous dissents and other published comments critical of the engrafting by the judiciary of these special defenses to the statutory waiver of sovereign immunity.

Perhaps because the Legislature has remained unresponsive to these dissenting cries for change, or perhaps because of stare decisis principles, or perhaps because of a genuine concern by the court, as presently constituted, that municipal treasuries will be depleted, the dissenting voices appear to have been substantially, if not totally silenced!

Police Protection-A Governmental Function

The general rule (as promulgated by the above decisions) is that a municipality may not be held responsible for damages sustained by a claimant as a result of a tort which arises out of the performance of a governmental function by a public employee. Although the line between governmental and proprietary functions is often not bright, police protection (including the enforcement of traffic regulations) has been held to be a function which is "uniquely" governmental. (See, New York County Board of the Ancient Order of Hibernians v. Dinkins, [*10]814 F. Supp. 358, 368 [S.D N.Y.1993] quoting, Shuttllesworth v. Birmingham, 394 U.S. 147, 152, 89 S. Ct. 935, 22 L. Ed. 2d 162 [1969]; see, also, Cox v. State of New Hampshire, 312 U.S. 569, 574, 61 S. Ct. 762, 85 L. Ed. 1049 [1941]["(the) regulation of the use of streets for parades and processions is a traditional exercise of control by local government"].

A proprietary function (which does not enjoy immunity) has been described as one where the government undertakes to perform services traditionally provided by private enterprises, for example, maintenance of the sidewalks and streets, transportation and medical services, and the operation and ownership of real property. (Clinger v. New York City Transit Authority, 85 NY2d 957 [1957];Miller v. State, 62 NY2d 506 [1984]; Weiner v. Metropolitan Transportation Authority, 55 NY2d 175 [1982];Terranova v. New York City Transit Authority 850 NYS2d 123 [2d Dept. 2007).

The above decisions explain that "police protection" and the allocation of public resources is an obligation owed (not to an individual tort claimant) but to the general public only; and that the decision for the allocation of police resources is a legislative-executive function, which is immune from tort claims as well as from review by a coordinate branch of government. (See, Riss v. City of New York, 22 NY2d, supra . at 582]).

Tort actions arising out of acts by police officers present some of the most difficult of the governmental immunity issues to determine because of the abundance of nuances presented by unique (some egregious) circumstances; and because some of the decisions dealing with these difficult cases, at face assessment, do not appear to be founded on logic or fairness. Out of all these difficult cases, the "special relationship" rules were eventually developed and refined over the years.

The sovereign immunity issue, especially as it relates to police activities, has been made even more difficult by relatively recent decisions in which the New York Court of Appeals has retracted even further the sovereign's zone of duty and liability. (See, Kovit/Lazan, supra ; see also, Pelaez v. Seide, 2 NY3d 186 [2004];Lauer v. City of New York, 95 NY2d 95, 99 [2000]; Kirela v. City of Jamestown, 74 NY2d 251 [1989].)

The Kovit/Lazan decision does not even mention the prior seemingly well settled distinction between the failure of a governmental employee to take action (non-feasance), and affirmative acts of negligence (misfeasance). It was the rule (unless a special relationship was established) that only negligent failure to act is immune. For example, it was observed in, Tango v. Tulevich, 61 NY2d 34,40 [1983] that " Municipalities surrendered their common-law tort immunity for the misfeasance of their officers and employees long ago (citations omitted)...." (See also, Parvi v. City of Kingston ,41 NY2d 553[1977] ["The case law is clear that even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care" (citations omitted)]; Persaud v. City of New York, 307 AD2d 346 [1st Dept. 1999] ["The alleged liability of the municipal defendant is predicated upon misfeasance of the defendant police officer in directing Miro to move without inquiring whether she was licensed to drive... accordingly the plaintiffs were not required to demonstrate a special relationship (citations omitted)"]. For affirmative acts of misfeasance, this fundamental principle was recognized long ago by Judge Cardozo in H.R. Moch Co. v. Rensselaer Water, in which he observed: "It is ancient learning that one who assumes to act, even though gratuitously,may [*11]thereby become subject to a duty of acting carefully, if he acts at all"(247 NY 160,167.[1928]).

However, even the distinction between nonfeasance and misfeasance is no longer a bright line of demarcation. Acts of misfeasance are also now divided into those which are ministerial (and actionable) and those acts of a public employee which allegedly involve the "exercise of discretion", and thus are not actionable. As "explained" in Tango,: "when official action involves the exercise of discretion the officer is not liable for the injurious consequences of that action even if it results from negligence or malice" ( Tango v. Tulevich, 61 NY2d, supra at 40-41 [1983]; emphasis supplied). The Court in Tango cautioned, however, that "each case must be decided on the circumstances involved, the nature of the duty, the degree of responsibility resting on the officer, and his position in the municipality's table of organization" [Id.]. In an effort to make more lucid what appears to be another difficult artificial refinement, the Tango court explained further: "As Prosser has noted, almost any act admits of some discretion in the manner of performance, even driving a nail. (See, Prosser, Torts [4th Ed], §132, p. 990). Nevertheless the rule to be derived from the cases is that discretionary or quasi-judicial acts that involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" [Id. at 41].

However, even in Tango, the Court of Appeals was constrained to admit that "judicial effort to distinguish between discretionary and ministerial acts have produced an array of decisions with results that are difficult to harmonize (citations omitted)" ( Id. at 40; emphasis added).

To complicate the issue even further, even ministerial acts have also been divided into two categories, only one of which results in a municipal liability ( Lauer v. City of New York, 95 NY2d 95 [2000]). This refinement deals with whether the law provides a duty owed to the public in general,or "duty running directly to the injured party".

In Lauer no one disputed that the negligent act of the New York City Medical Examiner, which resulted in harm to the plaintiff, was a ministerial act. Under the Tango line of cases the harm caused to plaintiff should have been actionable. However, the Court of Appeals (in a split 5-2 decision) again expressing concern for depletion of the public purse, reversed an order of the Appellate Division, and dismissed plaintiff's complaint upon the ground that the plaintiff cannot point to a duty owed "to him", as opposed to a general duty owed by the Office of the Medical Examiner to the "general public".(Id. at 99-100.) The majority "explained" that "a ministerial wrong merely removes the issue of governmental immunity from a given case"; and explained further that although "ministerial negligence may not be immunized..., it is not necessarily tortious... [because] without a duty running directly to the injured party there can be no liability and damages however careless the conduct or foreseeable the harm" (emphasis supplied; Id. at 99-100.) Thus the majority retrenched even further a municipality's zone of duty.

However, the majority was constrained to acknowledge that fixing the orbit of duty is a difficult task, and that "fixing the orbit of duty has likely divided this Court more than any other issue" [ Id at 100-101.] Nonetheless, the majority held that the Medical Examiner had no duty to the plaintiff ( the parent of the deceased) to correctly report its autopsy findings. [*12]

In dissents written by Judges Smith and Bellacosa, it was strenuously argued, among other things, that based on past precedent , it was clear that the Medical Examiner did owe a duty to plaintiff to accurately report the status of his son's death; that because the Medical Examiner's negligent act was ministerial, plaintiff need not show the existence of a special relationship; and that, in any event, the facts demonstrated that a special relationship between defendant and plaintiff did exist. In a parting salvo, Judge Belllacosa advised, admonished and cautioned that: "to immunize the kind of alleged misconduct described by the pleading of this case would reward government agents who hide the truth and sweep wrongdoings under a rug of tort impunity". [ Id. at 117]. In further strenuous disagreement with the majority, he argued that the Lauer case involved not just a duty but "a heightened duty" and that the action "does not hinge on a general duty to the public or merely a ministerial one...."; and that "[t]he danger to the public purse and public tort policy is not sufficient or proportionate enough to block any chance of accountability and redress here." (Id at 117; emphasis supplied). He added: "The principal and analysis that I endorse, along with Judge Smith, are what the law ought to proclaim as the standard of measurement of human and government conduct to foster responsible and accountable discharge of specific obligations to generally governed and yet directly affected citizens". (Id at 117-119; emphasis supplied)

The retraction of the zone of municipal duty, especially in police cases, did not end with Lauer ! (See, Kovit v. City of New York and Lazan v. County of Suffolk, supra , each reported at 4 NY3d 499 [2005][ In Kovit, City not liable for injuries to plaintiff, who was struck by a vehicle whose unfit driver had been negligently instructed by police officer to move said vehicle] [In Lazan, County not liable for injuries sustained by a driver who had been stopped by officer, and later negligently instructed by the officer to drive away even after he complained he felt "dizzy".])

The "Special Relationship Categories

The Kovit and Lazan cases present circumstances somewhat similar to the action now under consideration in that each arises out of an accident and damages caused by a driver who was following the orders of a police officer. Therefore, unless the totality of circumstances presented by this action are distinguishable from Kovit and Lazan, or fall into one of the Pelaez "special relationship" categories; it would appear that plaintiff's complaint must be dismissed as to the municipal defendants and also as to defendants McCallum and McLean, since it would be unconscionable not to provide them with some form of "piggyback" qualified immunity.

In Pelaez, the Court of Appeals provided an explication and consolidation of the rules and categories for the creation of a "special relationship"; and also provided it's most meaningful explanation to date as to when a negligently performed governmental act of misfeasance is actionable without the need to establish a special relationship.

Pelaez states that there are three circumstances under which a "special relationship" can be held to have been created, i.e., (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of the known, blatant and dangerous safety violation. ( Pelaez v. Seide, 2 NY3d at 199 [2004]). [*13]

(1) Violation of a Statutory Duty.

For those claims which allege a violation of a "statutory duty enacted for the benefit of

particular class of persons", Pelaez requires that the governing statute must authorize a private right of action, and states that one may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme. Pelaez, (citing Sheehy v. Big Flats Community Day, 73 NY2d 629, 673 [1989]) cautions that "if one of these prerequisites is lacking, the claim will fail." (Pelaez at 200).

To emphasize the need to prove all three prongs, Pelaez (citing UHR v. East Greenbush Central School District, 94 NY2d 32 [1999]), explained that in Uhr although the first two prongs of this form of special relationship were satisfied, the claim had to be dismissed "based on the plaintiff's failure to satisfy the third prong, requiring that a private right of action be consistent with the legislative scheme" (Pelaez at 200).

In Pelaez, (a lead paint hazard action based on an alleged failure to properly screen plaintiff's residence) a private right of action was also denied under this category because of a failure to fulfill the third (legislative scheme) element. It was further explained in Pelaez, that "while a private right of action might at least indirectly promote the ultimate legislative purpose regarding the lead paint hazards... it does not comport with the legislative scheme... [because] the enactment contemplates a program of oversight in which the role of government is in the main administrative and advisory." (Pelaez at 201)

(2) Voluntary Assumption of a Duty

For those claims where it is alleged that a municipality has "voluntarily assumed a duty", Pelaez reiterates the traditional following four Cuffy special relationship requirements i.e., (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking." (Pelaez at 202; Cuffy v. City of New York, 69 NY2d 255 [1987].)

For example, a special relationship was held to exist under the circumstances presented in DeLong v. Erie County, 60 NY2d 296 [1983]. There , a woman had called the County's 911 system to report a burglary in progress in her home, and she was assured that help was on the way. However, the operator communicated a non-existent address to the police, who made no further inquiry once they were unable to find the location that had been given to them. Within 15 minutes of the original call, the woman was found staggering and bleeding from her home with mortal stab wounds. The court upheld a jury finding that the County had breached a special duty it had to the decedent because (1) the county had voluntarily assumed the responsibility for establishing and running the 911 alert system and it had violated several of the system's procedures in the handling of this emergency call; (2) it was obvious that inaction could lead to [*14]harm; and (3) the decedent had relied to her detriment on the assurance of imminent help.

It was held in Pelaez that the law (the Lead Poisoning Prevention Act) which required lead paint screening, did not provide a basis to find that the municipality took on an affirmative duty to act on plaintiff's behalf; and thus determinedthat no special relationship had been established under this category.

(3) Assumption of Positive Direction and Control .

For this the third category of "special relationship", Pelaez cites to Smullen v. City of New York, 28 NY2d 66 [1971], as the prototypical case for establishment of this category of a special relationship. (Pelaez at 203).

Under this theory the plaintiff must demonstrate that the municipality somehow affirmatively acted to place the plaintiff in harm's way (as by giving assurances that the situation was safe when in fact it was not) thereby inducing the plaintiff to embark on a dangerous course he or she would have otherwise avoided. ( But see, Abraham v. City of New York, 39 AD3d 21 [2d Dept. 2007][special relationship not found when City's Department of Mental Health and Mental Hygiene, having been advised that a teacher in a private school had been diagnosed with tuberculosis, allowed the school to open for a new term before testing those who were most likely exposed to the illness].)

In Smullen, a private cause of action was upheld for a worker who was killed when he entered a dangerous trench after being assured that it was safe to do so by a City Inspector who knew it was dangerous and had the power to stop the job. In Pelaez, however, the court determined that this category of special relationship was also not established because, although the municipality had certain mechanisms available for the enforcement of lead abatement, and despite having monitored the process and having a given health and hygiene advice to the plaintiffs, it "did not take control of the abatement". ( Pelaez at 204).

Special Relationship Not Needed

Pelaez appears to have created (or at least explained) that there is a wholly distinct category where a special relationship need not be proven by plaintiff in order to have a private right of action upheld for harm caused by a municipal employee while engaged in the performance of a governmental act. As explained in Pelaez, a distinction is made between those claims where harm is "directly" caused by the negligent act as opposed to those where the municipal employee (although negligent) is not directly responsible for plaintiffs injuries. As explained in Pelaez:

"Most of this Court's special relationship cases have in common that the government is potentially open to liability even though it did not directly cause the plaintiff's injuries. For example, in the police cases (which all but occupied the special relationship field) the police [*15]were not directly responsible for the plaintiffs injuries. Similarly, the fire department in Helman , 67 NY2d 799, 501 NYS2d 325 [1986] did not cause the fire, much as the inspectors in Garrett, 58 NY2d 253, 460 NYS2d 774 [1983] did not cause the conflagrations. In this sense the municipal responsibility is different from and a less obvious basis for liability and than instances in which the government employee directly causes the injury as where a police officer negligently shoots or otherwise injures someone. (See, Jones v. State of New York, 33 NY2d 275, 352 NYS2d 169 [1973];Flamer v. City of New York, 309 NY 114, 127 NE2d 838 [1955]; Bernardine v. City of New York, 294 NY 361, 62 NE2d 604 [1945]; see generally, Annotation, Municipal Liability for Personal Injuries 88 ALR 2d 1330 ."In the special relationship cases we are generally asked to impose liability on the government because it failed to prevent acts of third persons who are primary wrongdoers". (Pelaez at 205-206; emphasis added)

In other words where acts of misfeasance directly cause the injury, no special relationship need be established. Where such acts of misfeasance are only an indirect cause of the accident and injury, a special relationship must be established.

Discussion, Findings and Conclusions

In this action the municipal defendants have asserted a sovereign immunity defense; and the defendants McCallum and McLean also vicariously raise this defense since they argue that they were obeying the command of a law enforcement officer. It is the claim of the municipal defendants that (despite what might be considered egregious circumstances) Officer Wanamaker, while engaged in crowd and traffic control was performing a governmental function; and they argue, therefore, that his discretionary decisions and acts (however negligent) performed during such a function, must be declared immune from any tort damage claim arising therefrom. Defendants argue, in addition, that the plaintiff has failed to establish the existence of any "special relationship" which would provide a valid "exemption" from said governmental immunity.

This court finds it difficult not to agree with the frustrations expressed by the dissenters to the seemingly endless judicially created exceptions which appear to treat the statutory waiver of immunity as the exception to the common-law sovereign immunity rule. So much for the adage that one may seek redress for every substantial wrong. However, this court recognizes that it must follow the law as enunciated by the majority decisions in the Court of Appeals no matter how inconsistent, arbitrary and unfair they may appear to be. This jurist cannot alter the mandates of the Court of Appeals. It appears that a codification, if it comes, must come either from the legislature or from the court that created these rules and exceptions. (See, Battala v.

State of New York, supra ; and Woods v. Lancet ,303 NY 349 [1951])[FN9]

In any event, as stated earlier, at this procedural juncture plaintiff is entitled to the benefit of every reasonable factual inference presented by the record. (Rizk v. Cohen, 73 NY2d 98 [1989]; Bielat v. Montrose, 272 AD2d 251 [1st Dept. 2000]). In addition, the plaintiff is not required to rule out every other factor that may have contributed to the accident (see, Gayle v. City of New York, 92 NY2d 936 [1998]; Gonzalez v. New York City Housing Authority, 77 NY2d 663 [1991]); and may rely upon circumstantial as well as direct evidence. As observed by the Court of Appeals, circumstantial evidence is not a disfavored form of proof and, in fact, may be stronger than direct evidence when it depends upon "undisputed evidentiary facts about which human observers are less likely to err ... or to distort" (People v Cleague, 22 NY2d 363, 367; accord, People v Barnes, 50 NY2d 375, 380; People v Harris, 136 NY 423; McCormick, Evidence § 185, at 543, n 17 [Cleary 3d ed]);(People v. Geraci 85 NY2d 359 [1995]).

The WICA Defendants

The record is barren of any evidence of fault on the part of the "WICA" defendants; and their motion to dismiss the complaint and all cross and third-party claims and actions is granted, without opposition.

Civil Rights Claims

The record is equally barren of any evidence supporting a civil rights claim or the additional claims made by plaintiff of assault and battery and negligent hiring; and the motions made by the defendants, the City of New York and Wanamaker, as to all of these claims and cross-claims, are also granted.

The "Donovan" Sole Proximate Cause Defense

As to the remaining claims and actions alleging negligence, recklessness, and failure to provide sufficient and proper training and supervision, all defendants argue that plaintiff's complaint should be dismissed upon the ground , (as held in Donovan v. West Indian American Day Carnival, 6 Misc 3d 1016(A); 800 NYS2d 345 [2005]), that there is no evidence as to any fault on their part which contributed to the incident. They argue that the evidence demonstrates that the accident was caused solely by the fault of the deceased. The facts and circumstances in Donovan are eerily similar, and in some instances almost identical, to those in the action now [*16]under consideration.

In Donovan a parade reveler was also run over during a West Indian Day Association festival by a trailer which was owned by JRC, and which was being used as a parade float to carry the musical band "The Burning Flames". As in Donovan, the accident happened late in the day near the end of the parade, and the deceased was one of the spectators who, among other things, walked and danced alongside the trailer as it moved along the parade route. However, there the similarity ends!

In Donovan, the record provides, and the court found, an abundance of evidence to support and prove the contention of the defendants , that they were free of any fault which was a cause of the accident. In Donovan (an accident which occurred three years after the accident underlying this case), the record is replete with the training and safety precautions taken prior to,

and during the parade, by all defendants in order to prevent another occurrence similar to the one

underlying this case.[FN10] In Donovan the court found, among other things, that "Officer Medina( who was assigned to accompany the defendant's vehicle), in periodically stepping out and walking alongside the tractor trailer, directing spectators to stay away from the vehicle, and in faithfully relaying the messages to Mr. Bennett (the driver) to move the vehicle forward only after said signals were first sent by spotters walking in front of the tractor-trailer and monitoring the traffic and pedestrian situation, exercised reasonable care while under escort duty and acted neither recklessly nor in knowing and disregard for the safety of others". [Emphasis added] The Court concluded, in Donovan, that the plaintiff proffered only "conjecture and speculation" as to the claimed fault of the defendant; and that, on the record presented, the "decedent himself was the sole proximate cause of the accident... (or) at best the accident was caused by the [*17]unforeseeable and superseding act of a third party, not defendants".[FN11]

It does not appear that any pre-parade safety and training precautions were taken in Lewis, as they were in Donovan. Officer Wanamaker testified that prior to the parade, no meetings were conducted and he received no formal training or instructions as to crowd and vehicle control at parades. He was given a specific assignment, told to report to Eastern Parkway and Nostrand Avenue, and merely instructed to try to keep the people behind the barriers. He was not even told to whom he should report. Moreover, if this testimony and the testimony as to the conduct of Chief Brennan's actions are accepted, there also appears to have been a lack of proper supervision at the Lewis parade. In any event, this is neither a "sole proximate cause" occurrence, nor one that is based on "conjecture and surmise". (See, Palsgraf v. Long Island Railroad Co. 248 NY 339 [1928]["the risk reasonably to be perceived defines the duty to be obeyed, and risk imparts relation"].)

The defendants here intentionally moved the tractor-trailer forward, and even increased its speed, without concern or caution for the obvious harm that could follow, and without regard to the statutory duty owed to proceed with due regard for the safety of all passengers and pedestrian spectators. Passengers on a vehicle have the right to assume that operators will obey the law and operate the vehicle in a reasonable manner; especially when that "operator" is a law enforcement officer.

In this parade, unlike in the Donovan parade, pedestrians were not prohibited from boarding the trailers as the parade stopped and started along its route. The deceased, Kenneth Thomas was one of those pedestrians, who also became a passenger from time to time, and apparently was run over while he was attempting to board the trailer.

In stark contrast to the reasonable precautions and actions taken by the defendants in Donovan, the record here, viewed in the light most favorable to the plaintiff, more than amply establishes (for purposes of this motion) that an issue of fact exists as to whether the City of New

York and Officer Wanamaker, as well as the operator, owners and lessors of the tractor-trailer, [*18]were reckless, or, at the very least, grossly negligent in their conduct; and whether said conduct was at least a direct contributing cause of the occurrence. Thus, as to the City defendants (and vicariously McCallum and McLean) the only issue left remaining is the applicability or non applicability of the alleged defense of sovereign immunity.

The Sovereign Immunity Defense

The sovereign immunity defense here fails since this action falls into four of the categories described in Kovit and Pelaez and prior cases, as exceptions to sovereign immunity.

1. "Direct Cause" Exception

On the record presented a jury could reasonably infer that Officer Wanamakercommitted an act of misfeasance, and that said conduct was a contributing direct cause of the accident herein. The court concludes therefore that a "special relationship" need not be established; and that the sovereign immunity defense is not applicable. (See, Pelaez v. Seide, supra , 2 NY3d 186; 205-206.) Compare Kovit/Lazan, supra , where the misfeasance of the police officer in each case was not a direct cause of the accident and injury; and the Court of Appeals dismissed each action because a special relationship was not established.

2. Proprietary Function Exception

The Court concludes, despite the traffic/crowd control overtones, that Officer Wanamaker was not engaged in a governmental function under the circumstances presented by this motion; and thus did not engage in any protected "discretionary" governmental activity which should be shielded by sovereign immunity. It is clear from the record presented that Officer Wanamaker virtually abandoned his traffic and crowd control function when he commandeered the privately owned vehicle which was being operated by a private citizen. In essence, Officer Wanamaker became the vehicle operator, and thus was engaged in a proprietary activity when he took over the transportation obligations of McLean and McCallum, who were under a statutory duty to obey Wanamaker's commands. (VTL §1102; NYC Traffic Rules and Regulations §4-12.)[FN12] Wanamaker was as much the operator of that vehicle as McLean, who merely implemented his directives.

Had Officer Wanamaker remained on foot patrol and had he assisted Officer Brown in clearing a path for the vehicle to proceed safely, rather than commandeering it, this accident would most likely not have occurred. As a result of his alleged order to McLean to "hurry up, hurry up and run the motherfuckers over", despite the real and present danger to pedestrians and passengers, a question of fact as to his negligence, recklessness and a violation of a statutory duty, must be held to exist.

Even if Officer Wanamaker is considered to have been engaged in a dual role (acting in both a governmental as well as a proprietary capacity), the specific acts out of which the accident [*19]arose, were proprietary in nature and therefore not immune. (Laura v. State, 202 AD2d 559 [2d Dept. 1994]; Lamotta v. City of New York, 130 AD2d 627 [2d Dept. 1987]).

3. Special Relationship ExceptionPelaez Category One

Officer Wanamaker's conduct, whether considered governmental or proprietary (or a combination of both) appears to qualify for the Pelaez category one special relationship exception to sovereign immunity since his alleged conduct was a violation of the Vehicle and Traffic Law as well as a violation of the guidelines and mandates set forth in the New York City Patrol Guide. (See, VTL §1180, §1212 and §1103 (c); and Patrol Guide §103-2; and see , Sarrinen v. Kerr, 84 NY2d 494[1994]; Lubecki v. City of New York , 304 AD2d 224 [!st Dept. 2003]; Lorber v. Town of Hamburg, , 225 AD2d 1062 [4th Dept. 1996].)

Section 1103( c ) of the Vehicle and Traffic Law specifically provides that all public officers and employees must obey the Vehicle and Traffic Law.

Section 1180 (a)of the Vehicle and Traffic Law provides, in part that "[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions, and having regard to the actual and potential hazards then existing" (emphasis added); and VTL §1212 provides in part, that "[r]eckless driving shall mean driving or using any motor vehicle ... in a manner which... unreasonably endangers users of the public highway...." (Emphasis added).

The New York City Patrol Guide, in effect on the date of this accident stated that a police officer must " [o]perate [a] car in [a] manner to avoid injury to a person or property [and must] drive at a slow rate of speed except under exceptional circumstances or extreme emergency".( Patrol Guide §103-2, at subdivisions 19 and 20 )

Even, assuming arguendo, that this was an emergency situation (which is certainly not demonstrated in this record), Officer Wanamaker's conduct could not be excused under the provisions of VTL §1104. That section provides that the operator of an emergency vehicle, when engaged in an emergency operation, may "exceeded the maximum speed limits so long as he does not endanger life or property" and, significantly, adds and cautions such operators that : "The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others". [Emphasis added]

Since the tractor-trailer was certainly not an emergency vehicle, nor was it involved in an emergency operation, the actions of Officer Wanamaker cannot be condoned under this rule.In Lubecki, supra , it was observed that " the immunity afforded a municipality for its employee's discretionary conduct does not extend to situations where a police officer violates acceptable police practice (citations omitted)." (Lubecki at 233-34). It was further explained in Lubecki that " the judgment error rule is not triggered by the action of a police officer who injuries an innocent bystander in an altercation involving a violation of established police guidelines governing the use of deadly physical force by police officers". [ Lubecki at 234]

On the record presented a jury could reasonably conclude that Officer Wanamaker violated the Vehicle and Traffic Law as well as the Police Patrol Guide. These laws and rules appear to have been enacted specifically for the benefit of a special class of persons( i.e. passengers, pedestrians and other users of the roadway). Thus the legislative purpose of the [*20]governing statute would be promoted by allowing this cause of action to continue; and nothing in this record would make it appear to be inconsistent with the legislative scheme to allow this wrongful death action to continue.

4. Special Relationship Exception Pelaez Category Two

The court finds that this action also qualifies for the Pelaez category two ( Cuffy type) special relationship exception to sovereign immunity . Officer Wanamaker, by his actions, certainly assumed an affirmative duty to act responsibly on behalf of all passengers and pedestrians; he knew that his actions could lead to harm; and "some form of direct contact" can be inferred since passengers have a right to assume that the operator of the vehicle will act with reasonable care and in compliance with the law. [ See, PJI 2:87 ]

Officer Wanamaker knew, or should have known, that there were pedestrian /passengers (including the decedent) who were getting on and off the vehicle at the time of his actions. It is beyond dispute that a passenger in a vehicle, while he is responsible for exercising reasonable care for his own safety, is also entitled to rely upon and assume that the operator of the vehicle (especially a law enforcement officer) would comply with the Vehicle and Traffic Law and operate the vehicle in a reasonable and safe manner. It certainly can be inferred from the circumstances that the decedent was aware that Officer Wanamaker had commandeered the vehicle and that he assumed that the vehicle would not be moved forward unless it was reasonable to do so, and then only in a manner which was reasonable and prudent under the circumstances presented.

CONCLUSION

This is the decision and opinion of the Court. Settle order accordingly. Said order, shall, among other things, amend the caption so as to accurately identify the parties remaining.

Dated: March 26, 2008

Paul A. Victor

J.S.C. Footnotes

Footnote 1:Although named in the caption, the defendant British Virgin Islands is no longer a party to this action; all claims, actions and cross claims against this defendant having been dismissed and discontinued with prejudice, by order of the United States District Court, Southern District of New York, dated August 26, 1998.The defendant J. & C Transport, Inc. [J & C] was mistakenly named as a defendant, and the parties have indicated that they will stipulate to a discontinuance of said action.

Footnote 2: At this procedural juncture plaintiff is entitled to the benefit of every reasonable inference presented by the record. (Rizk v. Cohen, 73 NY2d 98 [1989]; Bielat v. Montrose, 272 AD2d 251 [1st Dept. 2000])

Footnote 3: In addition to the testimony of McCallum as to circumstances leading up to the movement and speed of the vehicle, the Court takes judicial notice of the admission and statement of McLean contained in an official report made by Detective Schreiber to the effect that, in response to Officer Wanamaker's command McLean began to move the truck forward and "go faster". A similar, but hearsay statement, made by the decedent's sister-in-law to Detective Schreiber is noted, but has not been considered by the court on this motion.

Footnote 4:A substantial portion of the alleged post-incident factors are not included in the motion as originally submitted. However, these facts were revealed in post-submission oral arguments scheduled by the court with reference to this and other motions made in the case. In the interest of justice therefore, and to complete the record, the court permitted all parties to submit proof in support of, and in opposition to, the alleged post incident activities committed by the City of New York, which the plaintiff now claims are relevant as evidence of the consciousness of prior wrongdoing committed by the employees and agents of the defendant City of New York.

Footnote 5: By decision of this Court dated September 14, 2007, ( Lewis v. City of New York, 17 Misc 3d 559 [2007]) it was ordered that a copy of the tape and transcript were to be provided to plaintiff. In response to the decision the City provided affidavits concerning the diligent efforts made to locate the tape, the transcript, and related records concerning same. The City states that although it located the investigative file, and made a thorough search, neither the tape nor a transcript of the testimony can be found. Their affidavits however, provide no meaningful explanation for the disappearance of this material.

Footnote 6: "§8 Waiver of Immunity From Liability. The state hereby waives its immunity from liability and actions and hereby assumes liability and consents to have the same determined in accordance with the same rules of law that apply to actions in the Supreme Court against individuals or corporations, provided that the claimant complies with the limitations of this article...." This waiver has by implication been held to include all political subdivisions of the state, e.g. the municipalities. (Bernadine v. City of New York, 294 NY 361, 62 NE2d 604 [1960].)

Footnote 7: But see, Krohn v. City of New York, 2 NY3d 329[2004]; and Sharpata v. Town of Islip, 56 NY2d 332[1982] [In a matter of first impression, the Court of Appeals held that the waiver of sovereign immunity effected by section 8 of the Court of Claims Act does not permit punitive damages to be assessed against the state or its political subdivisions].

Footnote 8: See, Article: Municipal Liability Through A Judge's Eyes (44 Syracuse Law Review 925). In this article, the entire subject is thoroughly reviewed by its author, Stewart F. Hancock, a former Associate Judge of the New York Court of Appeals. He concludes, among other things: "I am more than ever convinced that an in-depth study of governmental immunity as it affects municipal liability is warranted... [because] the need for fairness and coherence in the rules and the growing concern with the huge financial burdens on municipalities...."

Footnote 9:In Battalla v State of New York, 10 NY2d 237 [1961], it was observed that "it is fundamental to our legal system that one may seek redress for every substantial wrong"; and the court further explained that:"We act in the finest common-law tradition when we adapt and alter decisional law to produce common sense justice... Legislative Action there could, of course, be, but we abdicate our own function, in a field peculiarly non statutory, when we refuse to consider an old and unsatisfactory court-made rule" [Battalla, supra ,238-240]

Footnote 10: It appears that the Lewis case was the triggering event which lead to precautionary measures that were adopted in response to the accident in the instant case. Prior to the parade in Donovan one or more safety meetings were conducted and attended by the NYPD, participants and volunteers. At the parade 3000 uniformed officers and a substantial number of sergeants, captains and other supervisory officers were assigned; and at least two uniformed officers were assigned to each float, including one assigned to ride in the cab of each tractor with its driver. In addition to volunteers, who acted as parade marshals accompanying each float including the one carrying "The Burning Flames"; and they acted as "spotters". In that capacity they "walked the route in between, in front of, and to the rear of each float, and... a marshall walked in front of the "Burning Flames" float and directed the tractor when to move forward". In addition, throughout the parade they "attempted to keep the crowd of spectators from obstructing the tractor trailer's progress, from getting too close to the tractor trailer and its wheels and/or from attempting to climb up onto the flatbed". It was also established that the tractor trailer moved and stopped only when advised by the spotters and/or police officers that it was safe to do so, and then only at a slow and safe rate of speed, never exceeding 5 to 8 mph. In Donovan parade spectators were prohibited and dissuaded from riding on the floats, whereas in the instant case it was expected that they would attempt to ride on the side of the floats, and this record is devoid of any evidence that they were in any way prevented from doing so.

Footnote 11: The record in Donovan also established that wooden and steel police barriers were erected on or near sidewalks along the length of the parade route to separate the enormous crowd of spectators from the parade participants; that the vehicle was equipped with wooden side railings to prevent spectators from becoming passengers on the trailer, and wooden wheel guards were placed on the rear wheels of vehicle; that when spectators who breached the barriers and attempted to jump or successfully jumped on the "Burning Flames" trailer, Officer Medina exited the cab and directed them to step away; that the spotters also asked spectators to stay clear and not get too close; that the deceased was one of the spectators that breached the barricades and was repeatedly warned to stay away from the vehicle, but danced near the driver's side of the flatbed trailer for about 15 minutes prior to the accident; that he was warned by a friend that he was too close to the trailer at a point when it was stopped and decedent moved away; that on several occasions he was advised by others that he was too close but didn't listen; that on the final occasion to avoid the crowd or someone in the crowd with a snake, he walked between the tractor cab and trailer and appeared to have been pulled under the wheels.

Footnote 12: VTL §1102 provides: "No person shall fail or refuse to comply with any lawful order or direction of any police officer or flag person or other person duly empowered to regulate traffic"; and Section 4-12 (a) of the NYC Traffic Rules and Regulations provides in part that " an operator must at all times comply with any direction given by a law enforcement officer...."