Nair v City of New York
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Nair v City of New York 2016 NY Slip Op 32968(U) March 9, 2016 Supreme Court, Queens County Docket Number: 19299/12 Judge: Kevin J. Kerrigan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] l~i2AFFIRMATION • • • • • • • • Page • 5 of 302 PILED. MAR l 7 2018 Short f'orm Order NEW YORK · SUPREME COURT - QUEENS COUNTY Present: HONORABLE KEVIN J . KERRIGAN Justice ----------------------------------------x Arun Nair, COUNTY CLERK QUEENS COUNTY Part _lQ_ Index Number: 19299/12 Plaintiff, • ~gainst Motion Date : 2/9/16 City of New York, Apple Towing Co., Jason Gray, Harry Szafranski and Gabriel M. Szafranski, Motion Cal. Numbe r: 116 Mot1 on Seq. No. : 1 Defendants. ----------------------------------------x The following papers numbered 1 to 18 read on this motion by Th~ City of New York, for an order to dismiss and for sununary judgment. defendan~, Papers Numbered Notice of Motion-Affirmation-Exhibits .. . . . .. ..... . .... Affirmation in Opposition (Szafranski) ......... .' ...... . Affirmation in Opposition(Gray)-Exhibits ......... .. .. . Affirmation in Opposition(Plaintiffl-Exhibits .. .. ..... Reply to Szafranski .. ..... .... ... '., .. .......... ..... . . Reply to Gray .... ..... ..... ... . . ....... . ............. . Reply to Plaintiff . ...... .. ... .. .. ...... .. . .. .. . : . . ... 1-4 ·5-6 7-9 10-1 2 13-14 15-16 11-18 Upon the forego"ing papers it is ordered that the mot ionl5 decided as follows: Motion by the City for sur;nmary judgment dismissing complaint and all cross-claims against it is granted. the Plaintiff allegedly sustained personal injuries when the vehicle operated by defendant Gray struck either plaintiff's disabled vehicle or defendant Apple Towing's tow truck that was at the scene of an accident involving plaintiff's vehicle and defendant Szafranski's vehicle on the westbound Long Island Expressway 50 feet east of Exit 17W in QueP.ns County at 2:10 a .m. on May 25, 2012. Plaintiff was standing outside his vehicle and was PMted 2/1312019 [* 2] • 19299/2012 AFFIRMATION • • • • • • • • PIQt 46 ol J02 struck by his disabled vehicle that had been propelled into him when Gray either struck it, causing it to move nnd hit plaintiff and then cont inue to strike the back of the tow truck, or struck the tow truck, propelling it into plaintiff's vehicle which, in turn, moved and struck plaintiff. The record on this motion establishes the following facts: Defendant Szafranski was driving his vehicle on the aforementioned roadway · at said location at 2: 10 a .m . when he experienced a blow-out which caused him to spin out of control, strike the center median and come to a rest in the left lane facing eastbound. That section of roadway was straight, level a~d lit so that no sighting problem issue 1s presented. It was also wet from a recent rainfall . Szafranski had his headlights on and activated his emergency flashers and honked his horn to warn oncoming traffic. He also called 911 for assistance. Approximately 10 minutes later, pl~intiff's vehicle approached in the left lane and struck Szafrans~i's vehicle, pushing it 10-50 feet . Thereupon, a flatbed tow truck owned and operated by defendant Apple Towing arrived. Approximately ten minutes thereafter, an NYPD vehicle operated by P.O. Jeremiah Winter, who was accompanied by P.O. Alex ferraris, arrived on the scene. Winter and ferraris testified in their depositions that they positioned their police vehicle so that it straddled approxim&tely half of the left lane and half of ~he middle lane and approximately 25-30 feet (according to Winter) or one car length (according to Ferraris) behind plaintiff's vehicle and angled toward the middle lane to divert traffic to the right lane. It undisputed that it had its emergency turret lights activated. Gray testified in his deposition tNat the police vehicle parked straight in the center lan~ and did not block the left lane where the accident vehicles were. Elwinto Pierre Louis, who was a passenger in plaintiff's vehicle, likewise testified in his · deposition that the police vehicle was in the center lane and no part of it was in the left lane. The officers exited their vehicle and went over and ins~ructed the t.ow truck driver, Alejandro Diaz, to hoo~ up Szaretski' s .vehicle and tow it off the LIE . They also went to plaintiff and Szaretski, who were standing outside their vehicles, and spoke to them separately and then went back to their police vehicle. Approx.imately 5-10 minutes from the time the officers got out of their police vehicle, walked over to the accident vehicles and tow operator and walked back to their vehicle, Officer Winter opened the trunk of the vehi cle and removed flares for placement on the -2- Pnnted 211312910 [* 3] • 19299/2012 AFFIRMATION • • • • • • • • Page • 7 of 302 road~ay, at which point defendant Gray · traveled past the police vehicle on the left, causing Winter to fall in the cen ~ er lane to avoid being struck, and either collided into pl,~ntiff'~ disabled veh i cle, pushing it into the tow truck that had just loaded Szaretski's vehicle onto it, which tow truck then moved, striking plaintiff and pinning him between plaintiff's vehicle and the center median, as plaintiff's counsel contends, or collided into plaintiff's vehicle, propelling it into plaintiff. .. . Gray testified that he was driving in the left lane of the LIE and that after he rounded a curve, the roadway was straight and he had ~n unobstructed view, ·from a distance of approximately 100-300 feet, of the police vehicle stopped entirely in the center lane with its lights flashing, a police officer standing by the front of the police vehicle and to the left of it and the flatbed tow truck with lights on top of it and a vehicle on it 2-3 feet ahead of the police vehicle in the left lane. · Gray initially testified in harmony wi~h the officers that the police vehicle was parked so that it partially blocked the left lane , but he did not recall how much ·of the police vehicle was in the left lane . He then amended his testimony, saying that th~ police vehicle was entirely in the center lane. He further explained that, ih an attempt to avoid the ·tow truck , he first trled to move to the right but realized that "that was not goi~g to be a good option, I would have ran - sideswiped the poU,ce car, probably hitting a police officer or -hitting someone, so I stayed · more to the left because I was alrea.dy in the left lane, so I just wanted to hit the median, that would slow ~e down, help me.n When asked why he intentionally struck the median, he replied, "When I applied the brakes the car did not stop, I tri~d to stop the car, and ·1 thought that would slow me down . ., He also estimated tha~ approximately 45 seconds elapsed from the time he came around the · curve ' and saw the two ·truck and th~ pol~ce vehicle to the time he struck the median . Plaintiff alleges that the officers were negligent in failing to protect the accident site by violating the established police protocol set forth in the NYPO Patrol Guide that requires police officers responding to an ~ccident to park their police vehicle with turret lights act i vated behind the accident to block off traffic and, where the accident is on a highway ~ tQ use traffic flares to shut down the lane of the accident . The City contends that since the officers were involved in an emergency operation when they responded to the accident between plaintiff's vehicle and Szafranski's and since they d i d not act with reckless disregard for the s~fety of plaintiff, it is entitled .3. . Pnnted 2/1312019 [* 4] • 19299/2012 AFFIRMATION • • • • • • • • Pogt(8ol302 to immunity from liability pursu·ant to VTL 1104 (e). The City also contends that it is immune from liability becavse the acts of the officers in the way t~ey responded to the accident were disc~etionary acts for which the City m~y not be held liable as a matter of law. Finally, the City also conten~s that the officers ' actions, even if negligent, were not the proximate cause of the accident. · Plaintiff's counsel contends that the there are issues of fact as to whether the police vehicle blocked the left lane, as the officers testified, or whether it was in the center lane, leaving the left lane unprotected, and whether their admitted delay of s-10 minutes before they alleqe they went back to their vehicle to set up flares was an unreasonable delay and thus, whether their actions violated the NYPO Patrol Guide. Counsel argues that there are issues of fact as to whether the officers' actions in failing to protect the accident site in the ~forementioned manner constitut~d recklessness, and argues that since the requirements of parking .their police vehicle behind the accident and to close off the ~ccident lane with flares set forth in the NYPO Patrol G~ide are mand~tory, the officers' actions were not discretionary. VTL 1104 is inapplicable to . the facts of this case. Pursuant VTL 1104(b) and (c), an a~thorized emergency vehicle that is engaged in an emergency operatio~ may disregard traffic laws if safety precautions are taken (~, Cr~~cion~ y City . at New Xgrk, 97 N~2d 152 [2001]; Baines v City. of ~e':' York, 269 AD2d 309 [1•c Dept ZOOO)), and the driver of the emergency vehicle will . be provided with a qualified' immunity from civil liability for injuries to a third party unless the driver "acted in reckless disregard for the safety of others (YTL 1104[~]; Saarioen y Kerr, 85NY2d494, 501 (1994)). t~ 0 Although there is no question that Wi nter's and Ferraris' police car was an emergency vehicle and was involved in an emergency operation at the time of the accident (~ VTL 114-bl, plaintiff's claim against the City is that the officers failed to comply with police protocol in protecting the accident scene so as to prevent Gray from driving into the tow truck and the dis~bled vehicles . Notwithstanding the mere boilerplate allegations of negli9ence set forth in the complaint as ag~inst all defendants, which the City argues must b~ disregarded insofar is asserted against it because they wer~ not set forth in the predicate notice of claim, plaintiff's counsel does not contend that Winter violated any traffic laws and does not contend that the police vehicle was involved in the subject accident or that the accident was in any way caused by the operation of the police vehicle so as to implicate VTL 1104. Plaintiff's counsel's argument that there is an -4- Pnnted 2113/2019 [* 5] • 19299/2012 AFFIRMATION • • • • • • • P1Qt 49 of 302 • issue of fact as t o whether the failure of the of f i c ers t o par k their police vehicle directly i n baclc of the acci'dent vehicles a nd to set down flares promptly after arriving at the scene in order to protect the accident scene CQnstituted reckless conduct, in opposition to t~e City' s meritless contention that i t is immune from liability upon the bas i s of VTL 1104, is also without mer i t and unworthy of further refutation . Plaintiff's counsel contends that Officers Winter and Ferraris failed to follow the procedures set forth in the NYPD Pat rol Guide , e·a 217-01, regard i ng · vehicle accidents, specifically, t he instructions to park the responding police vehicle behind the accident vehicles and to place flares and/or cones on the roadway at least 200 feet from the accident . Counsel contends that since Officers Winter and Ferraris did not park their police vehicle i n the left lane directly behind the accident vehicles to protect them from being struck by oncoming traffic but instead parked in the center lane , and since they di d not place flares or cones on the r'oadway to divert traftic from the accident l~ne within a reasonable time after ar~iving but, instead, expended 5-10 minutes engaging in conversation with those involved in the accident and the tow ~ruck operator, the City may be held liable in negligence for plaintiff's injuries resulting .from the failure of Officers Winter and Ferraris to adhere to police protocol. As noted, the City also moves for dismissal upon the grounds that the acts of the officers in the way they handled the accident scene, even if negligent, were discretionary acts for which the City may not be held liable, and that even if they vi olated t he · procedures set forth in the Patrol Guide, such acts were not the proximate cause of plaintiff's injuries. "(DJ iscretionary municipal acts may never be a ba sis for liability, while ministerial acts may support liability only where a special · duty j,.s involved" (~McLean v C_Hv of N_ew 'for~, 12 NY 3d 194, 202 (2009)) . J,iability may not be imposed for a public employee'~ discretionary act even if it was n,9ligent Kenayan v City of New Xork, 70 NX2d 558 (1987)) . Plaintiff's counsel argues since the procedures of parking the police vehicle behind the accident and to close off the accident lane with flares or cones set forth in the NYPD Patrol Gui de are mandatory, the officers' actions that deviated from these required procedures were not discretionary so as to shield the City from liability. Counsel also contends that even were the officers ' actions discretionary, imrnuni ty for discretionary acts of municipa 1 employees does not apply where the. defendant police officers violate ~cceptable police ·practices, citing Lubecki y City of New .5. Pnnted 2113/2019 [* 6] • 19299/2012 AFFIRMATION • • • • • • xm (304 AD 2d 224 (l St Dept 20031) ' Counsel contends that the conflicting deposition testimony concerning whether the police vehicle was parked partially across both the left and center lanes or was parked only in the center lane and whether the len9th of time it took for Officer Winter to prepare to set down flares was reasonable or excessive raise triable issues of fact as to whether the officers violated the procedures of the Patrol Guide . · The Patrol Guide provisions relied upon by plaintiff are those contained in the ~nterim order issued by the NYPD on April 2, 2012 revising Patrol ·Guide 217-01, "Vehicie Accidents General Procedure". Police officers responding . to a vehicle accident are di'rected, inter alia, to "Park radio motor patrol car behind vehicles involved, so that traffic will not be impeded", "Ascertain if there are any injuries and request ambulance if needed", "Divert traffic, i.f necessary", in which case they are directed to " Use traffic cones, turret lights and danger signs, whenever available" , "Place the first ~one at least two hundred .feet from the accident on high-speed highways~ bridges, etc. " "have vehicles removed from roadway as soon as practical", "Determine the cause of the accident by inquiry and observation", "Survey the scene carefully and be alert for common insurance fr~ud indicators", and "Take summary action, if necessary" . The rest of the instructions concern obtaining diver's licenses, registrations and in·surance cards of those involved in the accident and filling out the police accident report . Although the Guide directs officers as to the procedures they shall follow when responding to an accident, only the preparation of ·accident reports may be considered as ministerial acts. The balance of the aforementioned directives are not mere robotic tasks that may be viewed as ministerial, but involve the use of discretion, since every accident scene is differe.n t and the directives must yonform to 'the situation as it presents itself, and respondinq officers have to use their judgment . · A ministerial act is a mechanical act "requiring adherence to a governing rule, with a compulsory result" (X,auer v City of New York, 95 NY 2d 95, 99 (2000]). . Since the manner in wryich the o~f icers placed their vehicle at the accident scene and their determination as to when to place down flares after their arrival and survey of the accident and initial communication with the persons at the scene involved the use of discretion, and may not be second-guessed, the City may not be held liable in negligence, as a matter of law. Indeed, the instruction in the interim · order to "Divert traffic, l l necessary", demonstrate• that this instruction does not call for the performance of a mechanical, ministerial act, but for t~e exercise -6- • Page 50of 302 • [* 7] • • • • • • • Pogo ~ 1 of J02 • of discretion. Moreover, there is no d i rection requiring the diversion of traffic within any specific time frame. Therefore, the decision of the otficers to first go over to the persons. involved in the accident and to the tow truck driver and ascertain their condition, get their documents and instruct the tow operator to hook up the vehicles and get them off the road as quickly as possi~le before going back to their vehicl e 5-10 minutes later to remove flairs from the trunk to set down , rather than immediately. setting down flares or cones, was one left to ~heir discretion and t~e inst~uction to divert traffic was not a mechan i cal, ministerial requirement . E'urthermore, the direction to "Ose traffic cones, turret lights and danger signs, whenever available", calls for the use of whatever may be on hand for the diversion of traffic, if ·necessary. No mechanical act producing a compulsory result is involved . It is not disputed that the officers did use their turret lights and that they did have flares which they were intending t o lay down when· the accident occurred. And it is neither alleged Qr shown that the officers had cones or danger signs with them, and, therefore, plaintiff's argument that the officers di~regarded the interim order by failing to place down cones at least 200 fe e t away is without merit. · Plaintiff's counsel, citing Lubecki v City of New Xork argues that even if the officers' actions in the way they parked their police vehicle and their decision to take 5-10 mi nutes to talk to those involved in the accident and 'the t ow operator before going back to their vehicle to place flares on the road were discretionary acts, immunity does not apply where the officers violated acceptable police practices, in this case, th·e aforement ioned interim order concerning the placement of the police vehicle directly behind the accident vehicle and the closing of the accident lane with flares or cones. (~), Counsel's reliance upon Lubecki ' is misplaced. That c~se was a .wrongful death action in which plaintiff's decedent was killed i n a police shoot-out with a bank robber who was holdinQ the decedent hostage . The applicable police practices implicated were · those sections of the Patrol Guide and interim order addressing the use of deadly force and the procedures to be followed in a hostage situation. It was found that the police officer egregiously violated p rocedures by shooting a fusillade of bullets at the robber while the robper was using the .decedent as a human shield, kiUing the decedent. The Appellate Division , first Department, held that the inununity for discretionary conduct did not extend t o th.a t situation. In our case, plaintiff was not injured by Officers Winter and rerraris. They were not involved in the accident that caused -7- Pnnled 211312019 [* 8] • 192991201 2 AFFIRMATION • • • • • • • •• Page ~2 or 302 plaintiff's alleged injuries . The only claim of negligence aga i nst them is that they failed to protect the accident site, allegedly as requir;ed under the Patrol Guide, questionin9 their piacement of their vehicle and their judgm~nt in deciding to spend 5-10 minutes interviewing the pa~ticipants o! the accident and i~structing the tow operator to get the vehicles off the· highway instead of immediately closing the le!t lane with flares and cones, which actions were clearly discret~onary. In any event, there is no $howing that the interim order of the NYPD was in any way violated . The oniy police· practiQes alleged by · plaintitf to have been v~olated are the aforementioned instruct1ons in the interim order relating to the placement of the police vehicle and the diversion ot traffic . Plaintiff's entire ·case against the City is premised upon his contention ~hat the ot'ficers violated these mandatory 'procedures for p,rotectin9 , the accident site. With regard to the placement of the police vehicle, plaintiff contends that the in~erim order required Officer Winter to park his vehicle directly behind the accident vehicles so as to protect them . However, there is no such instruction. The paragraph relied upon ~tates, "Park radio motor patrol car behind vehicles involved , so that traffic will not . be . impeg~d" (emphasis added). This . instruction thus states the precise opposite of what plaintiff's ' counsel contends that it says . Police officers are instructed to par~ behiod the accident vehicles in order not to block traffic, not in order to block the accident vehicles f~om traffic. Therefore, the p'lain lan9uage of the interim order demonstrates that tl'lis instruction has no application to this case . With . respect to the remain'ing basis of plaintiff 's case against the City, the instructic;>n in the interim order regarding the diversion of traffic, said instruction <;foes not require the diversion of traffic by the settinq down of cones, flares or danger si9ns within any specific time frame and does not set forth the manner in which traffic must be diverted. The only specific instruction is that tne first cone be plac~d at least 200 feet from the accident, but that · instruction applies only if cones are available and if they are used. The instruction only calls for the use of whatever is available, including the use of turret iights which were used. Even if, arguendo, the interim NYPD order regarding the placement of the police vehicle behind the acc i dent were for the shieidin9 of the acciden t vehicles and not merely so as not to be a hindrance to traffic, and even if the parking of the police vehicle and the laying down of flares or cone• were mere -8- Pnnted 2113/2019 [* 9] • 1S299/2012AFFIRMATION • • ministerial • • • • • Pog• S3 or 302 • pla i nt iff ha s f a iled to ostablis h a special so as to expose the City to liability . As note9 , liability may be imposed against the City ~or. its employees ' ministerial acts only where a special duty was owed to the plaintiff . Moreover, it is well sett l ed that a municipality cannot be held liable for an i njury caused by a l;>re{)oh of a duty to provide a service owed to the general public, such as police or fire protection ( ~ Laratro v Ci tv pf New Xork, 8 NX 3d 79 (2006); ~uffy v ~ity of New Xork , 69 NX 2d 25S (1987)) , except in a narrow class of cases where a special relationship has been established between the munic.ipality and with the plaintiff (see Pelaez v . Seide, 2 NY Jd 186 (2004); Bljnc v, City of N~w Xor k, 223 AD 2d 522 (2nd Dept 1996) l . t ~sks, rel~tionship "A special relationship c an be f ormed in three ways : (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 dut,y; or (3) when the municipality assumes positive direc~ion and control in the fa~e of a known, blatant and dangerous safety violationu (Pelaez y . Sei~e; 2 NY 3d 186, 199-200 (~004)) (internal citation omitted). Plaintiff has failed to show that any of these three criteria are applicable to the facts of this case . The burQen o( establishing a special relationsh~p rests upon the plaintiff, and said burden is a heavy one (~ Pela~z y . Seide, 2 NY 3d 186, ~ ; Q+XQD y. Vill~ge of Spring Valley, 50 AD 3d 943 (2~ Dept 2008) ) . No issue has been raised, on this record, as to the applicability of the first and third bases for a speeial duty . With respect to the seconc;i basis for a special relationsh~p, the voluntarily assumption ~f a duty that generates justifiable reliance by the person who benefits fFom the duty, said requires all of the following elements : "(l) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behal! of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could i ead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4l that party's justifiable reliance on the municipality's affirmative undertakin.g" (~, ~; Pel,aez , ~).Moreover, not only must there be justifiable reliance, but such reliance must be to the detriment ot. the plaintiff (~ ..iJ:L.; Fdndlver v. City 9f New Xor~, 217 AD 2d 199 '(2"" Dept; 2000)) . Plaintiffs have failed to demonstrate that Office r s Winter and assumed any. aifi~mative duty to act on behalf of plaintiff. There is no evidence, and it is not alleged, that F~rreris -9· P1"1nt9d 2/131201Q I [* 10] • 11299/2012 AFFIRMATION • • • • • • • Pao• s.i of 302 • p~aintiff was ~laced or directed to stand ~t the location where he was at the time of the accident or that he was instructed by them ~o ~0 anything that placed him in greater jeopardy than he otherwi~e would have been, and that he would not have bee n in t he position of danger that he w.a!5, but for the actions of the officers . Plaintiff has thus also failed to demonstrate any justifiable detd,mental reliance. In order to have demonstrated justifiable reliance, he woulq have had to ~how that the officers, by their actiQns or promi$es, "lulled (h~m) inte a false seftse of security, and .. . thereby induced him either to relax his own v ~ g i lance or to forego other available avenues of protection" (~, 69 NY 2d at 261). Thus, even if the officers' actions in placing their vehicle in the center lane instead of in the ~eft l•ne behind the accident vehicles and in delaying 5-10 minutes before attempting t o close the accident lane with flares were ministeri~l breaches and not discretionary actions, since plaintiff ha~ failed. to show that there was a special duty o~ed to him, his action a9~inst the City is parred by governmental immunity, as a matter of law. allege~ly But since, as heretofore stated, the officers' actions in this reoard involved the use of their di$cretio~, they may not form · the basis of liability against the City. Finally, since Officers Winter and Ferraris were not i nvolved in the accident, and since their alle9Q~ failure to pa(k their vehicle directly in back of th~ accident vehicles in the left lane did not violate ·any mandated police procodure for the protect ion of those involved. in accidents, and since they have not been ~hqwn to have violated the instruction for the ·diversion of traffic, the City has demonstrated that their claimed l~pses in followin9 proper police · procedµre were noi a proximate ca~se of plointiff's injuries. Moreover, even if plaintiff had demonstrated that the officers violated the instruction in the interim order to block off the accident lane by failing to set down flares or <;ones in . a timely manne~ and failing to park their vehicle in the left lane behind the accl,dent vehicles, such, at most, only furnished the cond~tion for the accident an~ were not proximate eauses of the accident (~ E•v y Pierce, 302 AD 2d 4e9. [2nd Dept 2003)) . Accordingly, the motion is granted and the complaint and all cross.-claim$ are dismissed against tne City. The caption of this action is hereby amended to read as follows: ·I 0- Pnnled 2113/2019 [* 11] •• 1tl2W2012AFFIRMATIO>j • • • • • -----·---------------------------------x • • Index Number: 19299/q Arun Nair, Plaintiff, - against Apple Towing Co.,Jason Gray, Harry Szafranski and Gabriel M. Szafrans ki , Defendants. ----------------------------------------x Dated: March 9, 2016 KEVIN J. KERRIGAN, J.S.C. FILISD. MAR 11 Z0\6 COUN!Y CLERK QUEENS COUKTY -11- Pntlted 211312019
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