Almas v Loza

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Almas v Loza 2011 NY Slip Op 32721(U) October 20, 2011 Supreme Court, New York County Docket Number: 112379/07 Judge: Cynthia S. Kern Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON I012412011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY c ~ I S.A KERN J.S.C. PRESENT: Index Number : 112379/2007 PART -. 4 2- FRANTZ, EDGAR vs MOTlON DATE ALMAS, MOHAMMAD MOTION SEQ. NO. (5 2 Sequence Number : 002 STRIKE ANSWER 'Ifor Answering Affidavlts INoh). INo(fJ). IN O W . - Exhibits Replying Affldavlts Upon the foregolng papers, it is ordered that thls motion is I p+ Dated: , J.S.C. CYNTHIA S. KERN 0 CASE DISPOSED ..................................................................... nDENIED CHECK AS APPROPRIATE: ........................... MOTION IS: E]GRANTED CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 1. CHECK ONE: 2. 3. uDO NOT POST d, J.S.c. DISPOSITION NON-FINAL 0GRANTED IN PART OTHER uSUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] P lai lit i fL, Index No. 1 1 745812006 -again st- P.O. FEKNANDO ],()LA,NEW YOIIK CITY I OLJCE DEPAK I MENT and THE CI I Y OF NEW YORK, Iiidcx No. 11 184O/2007 P 1aint i l ¬, -against- P.O. FERNANDO LOZA, THE CI TY OF NEW YORK TI IE NEW YORK CITY POLICE DEPARTMENT AND MOI-IAMMAD ALMAS, Index No. 1 12379/07 I I P 1aintiff, -against- Recitation, as required by CPLR 2219(a), of the papers considcred in thc 1-cview of this motion for :- [* 3] Nu 11 b er ed 1 Papers Notice of Motion aiid Affidavits Annexcd .................................... hiiswering Midavits and Cross Motion ...................................... .> . Replying hliidavits ...................................................................... Ex hi bi t s ...................................................................................... 1,2,3 4,5,6 7,8,9 10 Plaintiffs commenccd their respective actions to recover damages they allcgcdly sustained resulting from ai1 automobilc collision involving a Ncw York City Policc Jkpartmeiit ( NYPD ) vehiclc. Plaintii fs Joseph Sosa ( Sosa ) and Edgar Frantz ( Frantz ) move for an order striking the City and Police Officer Fernando 1,oza s ( 1,oza ) answer. Frantz also inovcs for a special trial preferencc as he has reached seventy years of age. The City ol New York (the City ) crossiiioves for an order granting suminary j udgiuent dismissing all of Frantzand Sosa s claiins against the City and Loza. I he City also moves for summary judgment dismissing plaintiff Moliammad Almas claims against the City and Loza. Finally, L o a sceks dismissal of all individual claims against him. lhese motions have been consolidatcd for disposition. The court grants tlic City s motion to dismiss the individual claims against delendant L o a , dcnics the City s motion and cross-niotions against plaintiffs for suiniiiary judgment and denies Sosa and Frantz s motions to strike the City aiid Loza s answer for tlic reasons set forth below, The relevant [acts arc as follows. On July 10, 2006 at around I 1:00 p In., an NYPD vehicle driven by NYPT3 OiXcer 1,oza was driving northbound on Central Park West. Plaintiff Joseph Sosa, also an NYPD Oflicer was in the passenger seat of tlte vehiclc. 1,oza arid Sosa were traveling as back-up assistance in respoiisc to an emergency call that came ovcr the radio. Althougli the testimony is conflicting regarding the circumstanccs, it is undisputed that the 2 [* 4] NYPII vehicle drivcii by LoLa ].an a rcd light at tlic interscctioii oP Central Park Wcst and 97Ih Street. Whcii [ , o m rim the rcd light, his vehicle w a s struck by a van heading westbound 011 97 h Street driven by Almas. Fraiitz was a passengcr in the van driven by Almas. According to lmza, he engaged his lights and sirens, pulled up to the intersection of Central Park West and 97t 1Strcct and canie to a complete stop. J-Jc testificd h a t he looked tn his left for traffic arid that Oi iicer Sosa inforiiicd hini that tlicrc was no traffic coining from the right. He then proceeded into the intersection at 5- 10 milcs pcr hour and was struck by A l m s . Howcver, Sosa testified that Loza was traveling at around 45 tniles pcr hour and an accidciit recoiislruction expert attcsted on behalf of Sosa that Loza was traveling at between 55-60 miles per hour. Mormvcr, according to Almas, Frantz and Darrell Keister, another passengcr in the vchicle driven by Almas who is not a parly tu this action, none of them Iicard any sirens or saw any lights. 111 additioii, Sara Olson and Rick Mangi, two non-party witnesses who witncssed the accident also tcstified that the NYPD vehicle involvcd in the accidciit appeared to be driving around 40 miles pcr hour, did not slow down when it approached the intersection and did not havc its lights or sircns on. O n a motion for summary judgmcnt, the movant bears thc burden of prcsenting sufficient A1vcn.u v. l rosprcl evidcnce to demonstrate the absence of any malerial issues of fact, SPC Hasp., 68 N.Y.2d 320, 324 (1986). Summary judgmerit should not he granted wlicre there is any doubt as to the existcnce of a material issue of fact. See Zuckernzan v. Ci/y OJ NLWYo& 49 N.Y.2d 557, 562 (1 9x0). Once the movant establishcs a prima f acie riglit to judgmcnt as a nznttcr of law, the burden shifts to the paidy opposing the motion lo producc evidentiary proof i n adtiiissible lorin sufficient lo require a trial of material qwstioiis of facl on which kc rests his claim. ld 3 [* 5] When a police ol iicer driving a police vehicle involvcd in an eiiicrgcncy operation engages in specific conduct cxeniptcd by the Vchicle aiid Traffic Law ( VTl, ) S; 1104 (b), any in$iiry causing conduct of such ; driver is govcriied by the reckless disrcgard standard instcad o r I the iiegligciice standard. I lieCily argues that tlie accident at issue in thc instant action IS governed by the reckless disregard standard and that this court should gi-ant summary judgmcnt a against plaintiff dismissing their claims against the City because the conduct of Officer L o ~ did not amount 10 reckless disregard. Plaintiff Sosa argues that the ordinary negligcnce standard should apply to the instant action. I he court dcnics the City s motion for summary judgment against plaintiffs for thc reasons set forth below. l h c court will not reach the issue of whether the reckless disregard o r the ordinary negligciice standard applies bccause there remain triablc issues of fact under either standard ofcare based on the affirmations in opposition to the City s motion. The City, as tlie movant, presented thc tcstiinonial evidence of Officer Loza who testified that lie went througli the light at 5-10 miles pcr hour with the sirens aiid lights on. He also testified that although hc did not look to his right before proceeding through the interscction, he relied oil Officer Sosa who told hini [hat traffic was clear oii the right. ITowever, the testimonial evidence presented by plaintiffs is in direct dispute with J,oza s version of the [acts. In this regard, Alnias, Frantz and Keister all tcstified that they did riot see any lights or liear any sirens prior to the accident. Moreover, Sosa testified that Loza was traveling at around 45 miles per hour and Sosa s accidciit reconstruction expert attested that Loza was likely traveling betwecn 55-60 miles per hour-. Finally, Fraiit7 also produced the affidavits of two non-party witnesscs Olson and Mangi who attested that the police vehicle did not have its lights or sirens on, did n o t slow down at ihe 4 - [* 6] intersection, and appeared to be travcliiig around 40 miles per hour. 1f.a jury wcre to believe a version of the f x t s iiiost favorable to plaintiffs - that Ofiicer Loza sped through a red light al 60 niph without looking at both directioiis without his sirens or lights on, a jury could find that Officer Jmm s conduct amounted to reckless disregard. As the reckless disregmd standard requires a higher burdcn of proof than negligence, it follows that 3 jury could also h i d that Officer LoLa s conduct aiiiouiited to negligence. Accordingly, the court denies the C:ity s motion and cross-iiiutions for summary judgment against all plaintiffs. Ihc court grants defendant Lom s motion to dismiss all claims against him on the groirnd that he was not named on the noticc of claim. General M~inicipalJAW 5 50-c niakes unauthorized an action against individuals who have not been named in a notice of claim ... . . Tunnenhaum v C ify q f N w Ymk, 30 A.D.3d 357 (1 Dept 2006). In the prcscnt case, plaintifrs did not iiaiiie P.O. Fcrnando Loza in the notice oi claiin as an individual dcfendaiit. They only named the City of New Y ork. Accordingly, plaintiffs individual claims against defendant 1,oza are disrnisscd in their eiitircty. The court will now turn to Sosa and Frantz s motions to strike the City s answer. On September 15, 2010 and Septcinber 23, 2010, thc court issued two orders directing thc City to turn over various documciits to plaintii ls. Sosa and Frantz move to strike the City s answer c)ii the ground that the City has failcd to turned ovcr the documents ordcrcd to be discloscd iii thnsc court orders. I [l]t is well-scttled that thc drastic rciiiedy o l striking ; party s pleading pursuant to CPJ,R 3126 lbr failure to coinply with a discovery order is appropriate only whcre the moving party conclusively dciiionstrates that the lion-disclosure was willful, contumacious or due to bad 5 - . [* 7] faith. A4:Gih~ciy11, NLJWYork (, io) Auth., 213 A.D.2d 322, 324 (1 Tr. Dcpt 1995). Willful and contumacious behavior can be inf crred by a failure to coiiiply with court orders, in the absencc of adequate cxcuses. S e ~ Johnsoii v. City qf New York, 188 A.D.2d 302 (1 Dept 1992). Howevcr, j the First Departnicnt has held that lalctions should, wherever possible, be resolved on the merits, and, thcrefore, litigants who have not replied expeditiously to notices of discovery and inspection should bc afforded reasonable latitude before imposition o l the harshcst availablc penalty, thc striking ofplcadings. Hassrtt I). Hanllo Smgsu Co., Ltd., 103 A.D.2d 728 (1 I k p t 1984). In the instant action, plaintiil s motion for an order striking the City s answer is denied as plaiiitiiT has not demonstrated that thc City s failure lo coinply with discoveiy was willful and conturnacious. The City alleges that it has complied with all discovery requests. It has attached to its papers some of the documents previously ordered to bc produced and statcs that SODIC of the other documents do not exist. To the extent that the City has not produced the documents addressed in the discovery ordcrs datcd September 15,2010 and September 23, 2010, thc City is ordcrcd to turn over all documcnts requcsted in those orders to the extent they exist within 30 days of thc i-iling of this Decision. If any of the documents do not exist, the City must produce attorney affirmations attesting to that elfect within 30 days o l the filing of this Decision. I l the City fails to comply with this order within 30 days ofthe filing of this Decision, the City s answer will be deemed stricken. Accordingly, thc 1,oza s motion to dismiss all claims against him is granted, the City s motion and cross-motioiis for summary judgmcnt against it are denied and Frantz and Sosa s motions to strike the City and Loza s answers are denied and Frank s motioii for a special trial [* 8] preferencc pursuant to U P I A 6 3403 (a) (4) on the ground that he has attained thc agc of 70 is granted without opposition. I heclerk is directed to mark all papers in this case to rcflcct (he special trial prelreiicc and to expcdite the trial of this inatter. This constitutes llic dccision and order 01 court. [he J , S .c. K CYNTHIA s. KERN J . S.C. I Y a- . . 7

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