Morrissey v City of New York

[*1] Morrissey v City of New York 2009 NY Slip Op 52549(U) [25 Misc 3d 1242(A)] Decided on December 16, 2009 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2009
Supreme Court, Kings County

John Morrissey, Plaintiff,,

against

The City of New York, NEW YORK CITY POLICE DEPARTMENT and JASON C. NASTA, Z & C TRADING CORP. and AI ZHONG ZHANG a/k/a ZHANG AI ZHONG, Defendants.



036564/06



The plaintiff is represented by Everett J. Petersson, P.C., by Michael A. Serpico, Esq., of counsel, the defendants the City of New York, New York City Police Department and Jason C. Nasta are represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, by Julie Rubenstein, Esq., of counsel, the defendants Z & C Trading Corp. and Al Zhong Zhang are represented by Cheven, Keely & Hatzis, by Angelo Rios, Esq., of counsel.

Robert J. Miller, J.

This is a personal injury action arising from a automobile accident between a police car driven by the defendant Police Officer Nasta (Nasta) while plaintiff Police Officer Morrissey (Morrissey) was a passenger and a truck driven by the defendant Ai Zhong Zhang (Zhang) and owned by the Z & C Trading Corporation (Z & C).

Plaintiff moves pursuant to CPLR § 3211 to dismiss the affirmative defenses and pursuant to CPLR § 3212 for partial summary judgement on the issues of liability and serious injury. The defendants the City of New York, the New York City Police Department and Officer Nasta (the City) cross-move pursuant to CPLR §3212 to dismiss the complaint. The plaintiff, Z & C and Zhang oppose the City's cross-motion.

The undisputed facts are that on August 15, 2006 on Pennsylvania Avenue near the intersection of Livonia Avenue in Brooklyn NY a police car driven by Nasta was in pursuit of a motorcyclist wearing an unauthorized helmet in violation of Department of Transportation safety regulations. Officer Morrissey was Officer Nasta's supervisor. Nasta responded to plaintiff's instruction to pursue the motorcyclist by making a u-turn onto Pennsylvania Avenue and activating the lights and sirens of the vehicle. Plaintiff in an affidavit states that the police vehicle was "responding to an emergency situation with lights and sirens". The police car was traveling in the right hand lane headed northbound when the plaintiff instructed officer Nasta to slow down just prior to impact with defendant Zhang's truck. Officer Nasta did slow down but the impact with the truck occurred almost instantaneously. Zhang's truck moved from the left hand lane into the right hand lane where the police car was traveling. At no time did Nasta drive the police vehicle into the left lane of traffic. Officer Nasta testified at deposition that he was traveling at approximately 40 miles per hour. Zhang testified that the truck did not have a rear view mirror and that he heard the sirens from the police vehicle for about ten seconds prior to [*2]impact.

The Court will first address the City's cross-motion.

The City asserts that officer Nasta did not act recklessly as a matter of law and that therefore the statutory predicate upon which plaintiff relies in his General Municipal Law §205-e claim is insufficient to hold the City liable.

The plaintiff asserts a cause of action under General Municipal Law § 205-e which in pertinent part provides :

In addition to any other right of action or recovery under any other provision of

law, in the event any accident, causing injury... occurs directly or indirectly as aresult of any neglect, omission, willful or culpable negligence of any person or

persons in failing to comply with the requirements of any of the statutes,ordinances, rules, orders and requirements of the federal, state, county, village,

town or city governments or of any and all their departments, divisions and bureaus,

the person or persons guilty of said neglect, omission, willful or culpable negligence

at the time of such injury ... shall be liable to pay any officer, member, agent or employee

of any police department injured... while in the discharge or performance at any time or

place of any duty imposed by the police commissioner, police chief or other superior officer of the police department..."

The police vehicle driven by officer Nasta is an authorized emergency vehicle under New York Vehicle and Traffic Law (VTL) § 101.Vehicle and Traffic Law § 114-b defines emergency operation as the "operation ...of an authorized emergency vehicle, when such vehicle is engaged in...pursuing an actual or suspected violator of the law..." In this case according to the plain language of VTL §114-b, officer Nasta was driving the vehicle while in pursuit of a suspected violator of the law, the motorcyclist.Vehicle and Traffic Law §1104 provides that a driver of an emergency vehicle is exempt from certain traffic laws while driving a vehicle in an emergency operation, and his or her conduct "may not form the basis of civil liability to an injured party unless the officer acted in reckless disregard for the safety of others". (Saarinen v. Kerr, 84 NY2d 494 [1994].) The reckless disregard standard requires evidence that the party has intentionally committed an act of an unreasonable character and in disregard

of a known or obvious risk that was so great as to make it highly probable that harm would follow. (Molinari v. City of New York , 267 AD2d 436 [2nd Dept 1999], Saarinen v. Kerr, 84 NY2d 494 [1994]).

In determining whether the reckless disregard standard applies, the officer's subjective state of mind regarding whether the police call was urgent is immaterial. (Crisone v City of New York, 97 NY2d 152 [2001].) The Court of Appeals has emphasized that the trier of fact's role is not to second guess the police officer's split second weighing of choices that often exist in the [*3]course of a police operation. (Gonzalez v Iocovello, 93 NY2d 539 [1999].) Furthermore, in analyzing whether emergency personnel's actions rose to the level of recklessness, courts have determined that mere violations of the rules of the road do not rise to the level of recklessness. (Saarin v Kerr, 84 NY2d 494 [1994].) Nor is an officer reckless when exceeding the speed limit during an emergency. ( Nostrangelo v State of New York, 240 AD2d 716 [2d Dept 1997].)

The burden of proof is on the plaintiff to prove that officer Nasta acted recklessly at the time of the accident. (Szczerbiak v. Pilat, 90 NY2d 553 [1997]). The plaintiff and defendant Zhang in opposition both assert that because the police were pursuing a motorcyclist in possible violation of a helmet law that the nature of the offense does not constitute a real emergency even though it "technically" fits the definition of emergency under VTL § 114-b . Plaintiff also asserts that because officer Nasta was traveling at 50 MPH and was advised to slow down by his superior officer (the plaintiff), he was behaving recklessly. The Court finds that the police and Officer Nasta were engaged in an "emergency operation" as he was pursuing a "violator of the law" as per the undisputed testimony. No issue of fact has been raised which would establish that officer Nasta acted recklessly. Therefore, because the conduct was not reckless, the plaintiff cannot meet the statutory predicate for his General Municipal Law §205-e claim.

The City next asserts that the plaintiff's common-law negligence claim is barred by the "firefighters rule." The firefighters rule ( Kenavan v City of New York, 70 NY2d 557[1987]) which has been extended to police officers (Santangelo v City of New York, 71 NY2d 393 [1988]) bars police officers from recovering for line of duty injuries that occur as a result of the specific risks inherent in their duties. In this case, it is undisputed that the plaintiff was a police officer engaged in a police activity - chasing a motorcyclist for a helmet violation. Therefore, the common law negligence cause of action must also be dismissed.

Accordingly, the City's cross- motion for summary judgment is granted. The Clerk of the Court is directed to dismiss the complaint as against the defendants City of New York, New York City Police Department and Jason Nasta with prejudice. The remaining action is severed.

With respect to the plaintiff's motion pursuant to CPLR § 3211 to dismiss the City's affirmative defenses, it is denied as moot. The plaintiff's motion pursuant to CPLR § 3212 for partial summary judgment on the issue of serious injury in the "90/180" category of Insurance Law § 5102 (d) is unopposed and ,as such, is granted.

The case is transferred to a non-City part.

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller

J.S.C.

December 16, 2009