Frezzell v City of New York

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Frezzell v City of New York 2011 NY Slip Op 34148(U) April 9, 2011 Supreme Court, New York County Docket Number: 116366/07 Judge: Geoffrey D. Wright Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 4/14/2011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: Geoffrey D.S. Wright NEW YORK COUNTY Part 62 Justice KENT FREZZELL, INDEX NO_ 116366/07 MOTION DATE Plaintiffs) .v- ooz..-- MOTION SEQ. NO. THE CITY OF NEW YORK and STEVEN TOMPOS, MOTION CAL. NO. Defendant(s). The following papers, numbered 1 to 3 were read on this motion tolfor dismiss the complaint against City of New York and Steven Tompos, PAPERS NUMBEREQ Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... 1 ~nswerlng 2 Affidavits - Exhibits _ _ _ _ _ _ _ _ _ _ _ _ __ Replying Affidavits~------------------ .. en z 0 3 Cross-Motion: Yes X No Upon the foregoing papers, it is ordered that the motion by the Defendants City of New York and Steven Tompos to dismiss the complaint is granted a/p/o. w en u~ en (!) 1-- 0:: => z ....,_ o~ 1-- 0 0 ...J ...J w 0:: 0:: 0 u.. WW u. I w 1-0:: 0:: Dated: April 9, 2011 ~' t;J110ftllW~;;~':"ll)GWf Check one: FINAL DISPOSITION X NON-FINAL DISPOSITION Check if appropriate: [] DO NOT POST >- 0 u.. ...J ...J => u. 1-- u w 0.. FILED en w 0:: en w en <! u z 0 1-- 0 :.?: APR 1 4 2011 NEW YORK COUNTY CLERK'S OFFICE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 62 ------------------------------------------------------------)( KENT FREZZELL, Plaintiff(s), -againstCITY or NEW YORK, and STEVEN TOMPOS, Index# 116366/07 Motion C6366/07al. # Motion Seq.# DECISION/ORDER Present: Hon. Geoffrey Wright Judge, Supreme Court Defendant(s). --------------------------------------------------------------){ Recitation, as required by CPLR 22 l 9(a), of the papers considered in the review of this Motion to: dismiss the complaint PAPERS Notice of Motion, Affidavits & Exhibits Annexed Order to Show Cause, Affidavits & Exhibits Answering A111.davits & Exhibits Annex Replying Affidavits & Exhibits Annexed Other (Cross-Motion) & Exhibits Annexed ~-~--~ Upon the foregoing cited papers, the NUMBERED FI l ED APR 1 4 2011 Y'DRK-- - Decision/Or~~~~fii~~§6ff[~Si~ flJllows: The Plaintift~ a New York City policeman, sues the City of New York and Steven Tompos, another New York City policeman as because of an automobile accident, in which a police vehicle, driven by Tompos, ran head on into the police vehicle that was being driven by frezzcll. At the time of the accident, which occurred on September 20, 2006, at approximately 10:00 P.M., on 104t1i Street, between Columbus Avenue and Amsterdam A venue a one way street on which traffic travels east. Both vehicles were responding to a radio call that advised of a third police officer who was chasing a man wieldinr, a gun. The Plaintiffs vehicle was traveling eastward, the direction for traffic on West I 04 1' Street. The Tompos vehicle, also responding to the radio call, had come through Central Park, and turned north on Columbus Avenue, against the southbound flow of traffic, and on reaching 104th Street, turned west, also against the legal traffic flow. The accident happened two-three car lengths into the block. The two cars hit almost head on even though both drivers tried to turn to the right to avoid contact. Both drivers allege that they had turned on their sirens and dome roof lights The City now moves to dismiss the complaint. In the motion and in the opposing papers, two statutes collide. The first is GENERALMUNICIPALLAW205-E, and GOL§ 11-106 4 [* 3] (L. 1996, CH. 703) which grants to police a right of action in personal injury matters that were previously prohibited under the Firefighter's rule. lSANTANGELO v. STATE OF NEW YORK, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770 (1988)]. In conflict with the foregoing is section 1104( e ), which bars 20-20 hindsight is in analyzing an officer's spur of the moment reaction to an exigent situation. In order for there to be a recovery when YTL 1104(e) comes into play, there must be a finding that '"'the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow' and has done so with conscious indifference to the outcome" rGoNZALEZv. [OCOVELLO, 93 N.Y.2d 539, 715 N.F.2d 489, 693 N.Y.S.2d 486, 1999 N.Y. Slip Op. 06304, quoting SAARINEN v. KERR, 84 N.Y.2d 494, 644 N.E.2d 988, 620 N.Y.S.2d 297, 620 N.Y.S.2d 297, 644 N.E.2d 988J. In another interpretation ofthe statute, we find these words "The "reckless disregard" standard requires proof that the officer intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow (see Szczerbiak v. Pilat, 90 N.Y.2d 553, 557, 664 N.Y.S.2d 252, 686 N.E.2d 1346; Saarinen v. Kerr, 84 N.Y.2d at 501, 620 N.Y.S.2d 297, 644 N.E.2d 988; Campbell v. City ofElmira, 84 N.Y.2d 505, 510, 620 N.Y.S.2d 302, 644 N.E.2d 993)." [BURRELL v. CITY OF NEW YORK, 49 A.D.3d 482, 853 N.Y.S.2d 598, 2008 N.Y. Slip Op. 01905]. In this case, there are two police vehicles, each traveling at 15-20 miles per hour, each, in addition to having to be aware to the conditions oftraffic, was also looking for an armed suspect and/or a fellow police officer who may have been in peril. Each, it appears, saw the other and tried to avoid an accident, but could not because the width of the roadway did not permit sufficient room to avoid contact. J\t best, the Plaintiff has alleged mere negligence, which under the Vehicle and Traffic Law is not sufficient in this case. The motion to dismiss is granted. This constitutes the decision and order of the Court. Dated: April 9, 2011 C-. OlllOFFREVU:-w........... . ,. .H,. . ,'1. .-.'- klG, i\JSC FILED APR 11 2011 NEW yu;-w.. COUNTY CLERK'S OrFICE 5

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