Flynn v Town of Southampton

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Flynn v Town of Southampton 2017 NY Slip Op 30648(U) March 20, 2017 Supreme Court, Suffolk County Docket Number: 06-15028 Judge: Joseph C. Pastoressa 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. [* 1] SHORT FORM ORDER INDEX No 06-15028 CAL. No. 16-008800T SUPREME COURT - STATE OF NEW Y RK l.A.S. PART 34 - SUFFOLK COUNT COI'Y~ PRESENT: Hon. JOSEPH C. PASTORESSA Justice of the Supreme Court ---------------------------------------------------------------)( KAREN FLYNN as Administratrix of the Estate of ROBERT HUGH FLYNN, deceased, ROBERT HUGH FLYNN individually and KAREN FLYNN, individually, Plaintiffs, - against - MOTION D 7-27-16 (011 ) MOTION D 10-14-16 C012) ADJ. DATE 10-19-16 Mot. Seq. # 11 - MG # 12- MG;CASEDISP SULLIVAN CANNAVO, Attorney for 1140 Frankl· APAIN BLOCK MCGRATH & P.C. laintiff Avenue, Suite 200 ew York 11530 DEVITT SP LLMAN BARNETT, LLP Attorney for efendant Southampton 50 Route 111 Smithtown, ew York 11787 THE TOWN OF SOUTHAMPTON, and the COUNT Y OF SUFFOLK, Defendants. Attorney for uffolk County P.O. Box 610 Hauppauge, ew York 11788-0099 ---------------------------------------------------------------)( Upon the following papers numbered I to~ read on these motions for summa 'ud ment; Notice of Motion/ Order to Show Cause and supporting papers I - I0 32 - 48 ; Notice of Cross Motion and suppo ing papers_; Answering Affidavits and supporting papers I I - 29, 49 - 50 ; Replying Affidavits and supporting papers 3 - 31 ; Other_; (mid tt!tc1 l1ctt1 iug eot111~el iii suppo1 t ttiid opposed to the niotio11) it is, ORDERED that these motions are hereby consolidated for purpos s of this determination; and it is further ORDERED that the motion by the defendant The Town of Southa 1pton for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint and all ross claims against it is granted; and it is further ORDERED that the motion by the defendant County of Suffolk fo an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint and all cross c aims against it is granted. [* 2] Flynn v Town of Southampton Index No. 06-15028 Page 2 This is an action to recover damages for wrongful death and pers of Southampton and the County of Suffolk. In her complaint, the plainti that the defendants operated police departments and 911 emergency call that the decedent Robert Hugh Flynn (Flynn) placed calls to the respectiv need for aid, and that the defendants failed to come to his aid before his d al injuries against the Town alleges, among other things, stems (911 or 911 system), 911 systems reporting his ath and after his calls to 911. It is undisputed that Flynn made three calls to the 911 system ope ted by the defendant Tov,rn of Southampton (Town) on the evening of March 8, 2005, that Flynn was in briated at the time, and that the weather that evening was marked by very cold temperatures, severe w nds, and a snow storm in progress. Flynn reported that he was underneath his motor vehicle, and t at he was "freezing." However, it appears that he was unable to give his location to the 911 ope ators taking his calls. It is further undisputed that the Town of Southampton Police Department (SP ) undertook a search for Flynn, and called in the assistance of multiple agencies and entities. Non theless, Flynn was not found until hours later after he had expired due to exposure to the elements. The Town now moves for summary judgment dismissing the com laint and all cross claims against it. The proponent of a summary judgment motion must make a p ma facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence t eliminate any material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [19 6]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 , 487 NYS2d 316 [1985]). The burden the shifts to the party opposing the motion which must produce evidentiary proof in admissible form suffi ient to require a trail of the material issues of fact (Roth v Barreto, 289 AD2d 557, 735 NYS2d 197 [ d Dept 2001]; Rebecchi v Whitmore, 172 AD2d 600, 568 NYS2d 423 (2d Dept 1991]; O'Neill v To n of Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]). Furthermore, the parties' competi g interest must be viewed "in a light most favorable to the party opposing the motion" (Marine Midlan Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610, 563 NYS2d 449 [2d Dept 1 90]). However, mere conclusions and unsubstantiated allegations are insufficient to raise any tri ble issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]; rez v Grace Episcopal Clturclt, 6 AD3d 596, 774 NYS2d 785 (2d Dept 2004]; Rebecc/1i v Wltitn ore, supra). In support of its motion, the Town submits the pleadings, the notic of claim filed herein, the transcripts of the depositions of two SPD employees, the plaintift: and a n nparty witness, and an affidavit authenticating the compact disc which includes the record ings of lynn' s calls to 911. At his deposition, Robert Hintze (Hintze) testified that he was employed as a dete tive sergeant with the SPD from 2003 to 201 1, that he was the senior police officer in charge of the in estigation to locate Flynn on March 8, 2005. and that the first call from Flynn came in at 1912 hours (7: 2 p.m.). He indicated that the SPD dispatch center dispatched several patrol sector units and an ambu ance one minute later at 1913 hours, that an "emergent request subscriber info[m1ationf' was made at tha time to attempt to discover the cell phone number of the phone used by Flynn and the address related t that account, and that the Southampton Village Police Department, the Town Fire Department, and t e local university police department were asked to assist in the search for Flynn at 1930 hours. He s ated that, pursuant to the SPD request, AT&T provided Flynn's name and address at 1939 to 1943 h urs, that police unit C41 was dispatched to the Flynn residence, and that the make and model of the mot vehicle they were attempting to locate was established. [* 3] Flynn v Town of Southampton Index No. 06-15028 Page 3 Hintze further testified that he was already in his patrol car searc ing the roads when the subject information was transmitted over the police radios, that he went to the F ynn residence and spoke with the plaintiff, and that the plaintiff told him that her husband and a Brend n Patrick O'Brien were working at a construction site in Sag Harbor, New York. He stated that e plaintiff told him that she had received a telephone call from her husband at approximately 5:00 p. . indicating that he was on his way home from work, that he spoke with O ' Brien by telephone, that O ' rien indicated that he had not worked at the construction site that day, and that O ' Brien provided the a dress in Sag Harbor where the work was being performed. He indicated that additional municipal agen ies in the Sag Harbor area were called in to assist in the search for Flynn. Hintze further testified that he directed the search to expand to areas between Sag Harbor and Flynn's residence and that, when Flynn st 11 was not found, he decided to have a second conversation w ith O'Brien, who revealed that, rather tha1 going to work that day, Flynn had been at Shippy's, a local bar. He stated that he directed a patrol car Shippy's, that the bartender there informed the responding police officer that Flynn had been picked p by a local taxi company, and that the taxi company informed his offices that the subject taxi had drop ed Flynn at the Shinnecock Golf Club. He indicated that Flynn was located in the "maintenance par ing lot of the Shinnecock Golf Club at approximately 2147 hours (9:47 p.m). Hintze further testified that, in 2005, the SPD 911 system could d termine the latitude and longitude of the cell phone tower which was transmitting Flynn's calls to 911, that the 911 system could not determine the latitude and longitude of Flynn's cell phone, and that e dispatchers were aware of the location of the subject cell phone tower at approximately 7 :20 p.m on th evening of this incident. He stated that he was aware of the location of the cell phone tower, that the stem indicated that Flynn's calls "came in on a northeast quadrant of that tower," and that he directe "our assets and resources within that ... geographic area" He indicated that Flynn was found in sai parking lot which is within the northeast quadrant of the subject cell phone tower, that the parking lo is located off of Tuckahoe Road, and that the parking lot is " landscaped to preclude viewing ... into he maintenance lot." O'Brien was deposed on March 20, 2008 and testified that he is a self-employed contractor, that he met Flynn approximately 10 to I 2 years ago in a bar, and that he hired Flynn part-time to assist him in his work. He stated that he spoke to Flynn "around lunchtime" on the ate of this incident, and that Flynn was having lunch at Shippy's." He indicated that the plaintiff call him sometime that evening and told him that Flynn had been in a car accident on his way home from vorking with him in Sag Harbor, that he told the plaintiff that Flynn had not been with him and ha been at Shippy's, and that he expressed that Flynn had no reason to be in Sag Harbor that day. O'Brie further testified that "[i]t was common knowledge that [Flynn] would drive over to the guest parking lo and leave his car there and take a taxi to local bars and pubs to go drinking during the day," that Fly n had a drinking problem which was "a big issue between him and his wife," and that it was his un erstanding that Flynn parked in said lot to deceive his wife. He stated that he had dropped Flynn off at th Shinnecock Golf Club parking lot off Tuckahoe Road on occasion, and that he did not tell the S D that he suspected Flynn ·s vehicle was parked at the golf club because the plaintiff had told him that Flynn ''had been in an accident coming back from Sag Harbor and he was stuck under his car somewhere .. At her deposition. the plaintiff testified that her husband left horn at 8:00 a.m. on the day in question to work with O ' Brien in Sag Harbor, and that her husband called her at approximately 3:15 p.m. to tell her that he was with O'Brien and leaving work in Sag Harbor o come home. She stated that [* 4] Flynn v Town of Southampton Index No. 06-15028 Page4 her husband spoke with her daughter by telephone at approximately 6:00 p.m. to say he was on his way home, and that he called again at approximately 7:00 p.rn. but that no on answered the phone in time to speak with him. She indicated that the police arrived at her home at 7:2 p.m. , that the police infonned her that her husband had been in an accident and that they were trying to ocate his whereabouts, and that they asked if she knew where her husband was coming from and "if ther was anywhere around me that had water." The plaintiff further testified that she told the police that, as ar as she knew, her husband was coming home from a job in Sag Harbor, that a pol ice officer used he cell phone to speak with O'Brien, and that she overheard the police officer tell O'Brien that her h sband was in trouble and that O'Brien needed to tell the police where her husband was located. She in icated that O'Brien did not provide any helpful information at that time, that later in the evening ad tective arrived at her home and spoke with O'Brien by telephone call a second time, and that O'Brien tol the detective at that time that her husband had been at Shippy's at 4:00 p.m. She stated that her husb d would often take taxi cabs from bars to the golf club because it is "around the corner" from their ho e, that "he liked to drink and he wouldn't drink and drive," and that when one parks there "you can't s e the car, it's hidden." James C. Cavanagh (Cavanagh) was deposed on November 24, 2 14 and testified that he is employed by the SPD as a police officer, that he was involved in the sear h for Flynn on the day in question, and that he recalls receiving a radio transmission to the effect t at he was to look for "a man under a car by a body of water." He stated that it was snowing, with hea winds, at the time, that he searched "all over the entire area" along County Road 39, and that he eve tually discovered Flynn's body in the golf club parking lot located off Tuckahoe Road. He indicate that, when he fitst drove into the subject parking lot, he passed Flynn's vehicle without seeing it becau e the visibility was so poor, that he first saw the vehicle when the wind died down as he was backing ut of the parking lot, and that he noted the license plate number and confirmed with police headquarter that this was the vehicle that he had been trying to locate. Cavanagh further testified that he exited his patrol car to detennine if there was anyone inside the vehicle, that he then went around the back of the ehicle, and that he found Flynn's body there. He stated that he did not recall if detective Hintze ar ived shortly before or after he discovered Flynn's body, and that he checked Flynn for life signs and did not find any. He indicated that he did not recall if he ever heard a radio transmission that night informin him of the latitude and longitude of Flynn's cell phone. A review of the recording of Flynn's cell phone calls to 911 high!' hts the tragic circumstances in this case. In the first call, the 911 operator asks Flynn for his address, nd he is unable to answer. The 911 operator then asks Flynn for his location , and despite repeated re uests the best he can do is to respond "off the highway at Shinnecock Hills." In obvious extremis, Fly1 indicates that he is cold and freezing, that he is "under vehicle. I can't move;' and that he was headin towards Southampton. That is, the first call failed to establi sh Fly1m 's location and led to the reasonab e but e1rnneous belief by the SPD that Flynn was trapped under his vehicle. In Flynn' s second call, the 911 operator initially asks for the addre s of the emergency not knowing that the call is from Flynn, who answers ..hello:· The 911 opera or asks if this is the caller who was in an accident, and Flynn responds "trapped.·· Upon being asked wh re he lives. Flynn responds "'o ff County Road 39," a nd '·golf course .., In response to additional questi ns as to where he lives, whether he is pinned underneath his car, and where he is located, Flynn re ponds that he is freezing, [* 5] Flynn v Town of Southampton Index No. 06-15028 Page 5 "please come get me," and other non-responsive answers. By the third c 11, Flynn's only responses to questions are that he is freezing, and that he is '·fading out." As a general rule, an agency of government is not liable for the n gligent performance of a governmental function unless there existed a special duty to the injured p rson (McLean v City of New York, 12 NY3d 194, 878 NYS2d 238 [2009]; Thompson v Town of Bro khave1t, 34 AD3d 448, 825 NYS2d 83 (2d Dept 2006]). The four elements that are required to estab ish a special relationship are (1) an assumption by the municipality, through promises or actions, of affirmative duty to act on behalf of a party who was injured; (2) knowledge on the part of the muni ipality' s agents that inaction could lead to harm; (3) some form of direct contact between the municip lity's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirm tive undertaking (see Mclean v City of New York, supra; Kovit v Estate of Hallums, 4 NY3d 499, 797 YS2d 20 [2005]). To sustain liability, the duty breached must be more than that owed to the public ge erally (Lauer v City of New York, 95 NY2d 95, 100, 711 NYS2d 112 [2000]). The burden of proof o establishing a special relationship is on the plaintiff (Valdez v City of New York, 18 NY3d 69, 36 NYS2d 587 [2011]; Lauer v City of New York, supra). In order to invoke the special duty rule, plai tiff must establish that, through affirmative acts, the municipality has lulled him or her of foregoi g other avenues of protection or that it has voluntarily assumed a duty separate from that owed to the p blic at large (Bishop v Bostick, 141 AD2d 487, 529 NYS2d 116 [2d Dept 1988]). It is the plaintiffs bur en to show that the defendants conduct actually lulled him into a false sense of security, induced him to lax. his own vigilance or forego other avenues of protection and thereby placed him in a worse pos tion than if the defendants never assumed the duty (Dixon v Village of Spring Valley, 50 AD3d 943 856 NYS2d 243 [2d Dept 2008]; see also Dinardo v City of New York, 13 NY3d 872, 893 NYS2d 18 (2009]; Brown v City of New York, 73 AD3d 1113, 902 NYS2d 594 [2d Dept 201 OJ; Conde v c· of New York, 24 AD3d 595, 808 NYS2d 347 [2d Dept 2005]). Here, the Town's submissions indicate that Flynn was incapable o action on his own behalf, and that he was not lulled into a false sense of security or placed in a worse p sition had the SPD not assumed the duty to search for him. Even assuming that the first three ele ents of the special relationship test have been met, the fourth element requires justifiable reli ce on a municipality's undertaking. "[T]he injured party's reliance is as critical in establishing tJ e ex istence of a 'special relationship' as is the municipal ity's voluntary affinnative unde11aking of duty to act. That element provides the essential causative link between the 'special duty' assumed b 'the municipality and the alleged injury" (Cuffy v City of New York, 69 NY2d 251, 261 , 5 13 NYS2 372, 375 [1987]; see also Kirclter v City of Jamestown , 74 NY2d 251, 544 NYS2d 995 [1989J). The Town has established it prima facie entitlement to summary j dgment by demonstrating that a special relationship did not exist between the municipality and Flynn (se Santoro v City ofNew York, 17 AD3d 563, 795 NYS2d 60 [2d Dept 2005)). Thus, it is incumbent upo the plaintiff to produce evidence in admissible form sufficient to require a trial of the material iss es of fact (Rotlt v Barreto, supra; Rebecclzi v Whitmore, supra; O'Neill v Fisltkill, supra). In opposition to the Town·s motion, the plaintiff submits, among o her things, the affidavit of an expert witness, the transcripts of the previously summarized depositions o Hintze and Cavanagh. the depositions of three additional S PD employees, and a transcript of the "ce1 ified recording" of Flynn 's [* 6] Flynn v Town of Southampton Index No. 06-15028 Page 6 calls to 911. A review of the three additional depositions of SPD emplo) es submitted herein reveals that the testimony exclusively involves the actions of the respective witn sses in either handling Flynn's 911 calls or searching for his vehicle. That is, whether the respective em loyee was negligent in his or her handling of this matter. The affidavit of the plaintiffs expert witness similarly only addre ses the alleged negligence of the SPD herein. In his affidavit, Walter Signorelli (Signorelli) swears th he retired from the New York City Police Department as an Inspector, that he currently acts as a consul nt " in security and police liability matters," and that he has reviewed the depositions and relevant d cuments herein. He states that, based on his review, it is his opinion that the SPD was negligent in t iling to broadcast the latitude and longitude "associated with Mr. Flynn's call" at 7:20 p.m., and to sear h the northeast quadrant of the subject cell phone tower " in the first instance." It is well settled that the pinion testimony of an expert " must be based on facts in the record or personally known to the witness' (see Hambsch v New York City Tile respondent A uth., 63 NY2d 723, 480 NYS2d 195 [1984), citin Cassa110 v Hagstrom, 5 NY2d 643, 646, 187 NYS2d I [1959); Shi Pei Fang v Heng Sang Real Corp., 38 AD3d 520, 835 NYS2d 194 [2d Dept 2007]; Santo1ti v Bertelsmam1 Property, Inc., 21 D3d 712, 800 NYS2d 676 (1st Dept 2005]). An expert " may not reach a conclusion by assuming materi l facts not supported by the evidence, and may not guess or speculate in drawing a conclusion" (see S 1i Pei Fang v Heng Sang Realty Corp. supra). "Speculation, grounded in theory rather than fact, is insufficient to defeat a motion for summary judgment" (see Zuckerman v City of New York supra; Leg is v Gearhart, 294 AD2d 543, 743 NYS2d 135 [2d Dept 2002]; Levitt v County of Suffolk, 145 AD2d 14, 535 NYS2d 618 [2nd Dept 1988]). Signorelli does not indicate that the initial searches were not in t e northeast quadrant of the subject cell tower, or that the broadcasting of the latitude and longitude w uld have resulted in locating Flynn without the additional information which was developed through t SPD investigation and its second conversation with O'Brien. Here, to the extent that Mr. Signorelli s affidavit attempts to render an expert opinion, it primarily consists of theoretical allegations with no i dependent factual basis and it is therefore speculative, unsubstantiated, and conclusory (see Mestric v rtinez Cleaning Co., 306 AD2d 449, 761 NYS2d 504 [2d Dept 2003]). More importantly, Signorelli 's affidavit does not address the issue of Flynn's justifiable reliance and the plaintiffs submissions fail to offer any admissible evidence on th" issue. The record indicates that Flynn was unable to provide his location to the 911 operator and ther is no evidence that the defendants made any assurances that lulled him into a false sense of secu ty or placed him in a worse position (see Dix.011 v Village ofSpring Valley, supra; Holloway v City o New York, 141 AD3d 688, 36 NYS3d 190 (2d Dept 2016)). Thus, the plaintiff has failed to raise a triab e issue of fact. In its answer the County of Suffolk asserts a cross claim against th Town for indemnification and/or contribution. It is well settled that the dismissal of the complaint a against the Town renders said claims or causes of action academic (Boo11e v JOO Marcus Drive Ass cs.. 61 AD3d 798, 877 NYS2d 433 (2d Dept 2009); Zabbia v Westwood, LLC. 18 AD3d 542. 79 NYS2d 319 [2d Dept 2005); Hajdari v 437 Madison Ave. Fee Assocs. , 293 AD2d 360. 740 NYS2d 32 [P' Dept 2002)). Accordingly, the Town·s motion for summary judgment dismissing the conplaint and all cross claims against it is granted. [* 7] Flynn v Town of Southampton Index No. 06-15028 Page 7 The County of Suffolk (the County) now moves for summary jud ent dismissing the complaint and all cross claims against it on the grounds that the County did not rece ve a 91 1 call from Flynn on the evening of this incident, and that it did not owe a duty to Flynn or the laintiff herein. In his affirmation in partial opposition to the County's motion, cow1sel fo r the p aintiff avows that the plaintiff "can not demonstrate any 'contact' between plaintiffs decedent and the ounty suffici ent to raise an issue of fact as to the existence of a duty on the County's part to plaintif s decedent." The remainder of said affirmation addresses an issue regarding the notices of claim filed he ein. For the reasons stated herein in determining the motions of the Town and the County, said issue is deemed academic. Accordingly, the County's motion for summary judgment dismissing the omplaint and all cross claims against it is granted. Dated: March 20, 20 17 X FINAL DISPOSITION To: PHILIP J. RIZZUTO, P.C. Attorney for Defendants Public Administrator and Strictly Suffolk, Inc. One Old Country Road Carle Place, New York 11 514 LAW OFFICES OF THOMAS G. NOLAN Attorney for Defendant Hometown Taxi POLICE OFFICER Box 826 Aquebogue, New York 11931 BROWNELLPARTNERSPLLC Attorney for Defendants NN & EM & NN & EM LTD d/b/a SHIPPYS PUMPERNICKELS EAST 40 Wall street, 27th Floor New York. New York 10005

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