Estate of Nicholas Christian Gambino-Vasile v Town of Warwick

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[*1] Estate of Nicholas Christian Gambino-Vasile v Town of Warwick 2018 NY Slip Op 28392 Decided on December 11, 2018 Supreme Court, Part-orange County Bartlett, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 11, 2018
Supreme Court, Part-Orange County

Estate of Nicholas Christian Gambino-Vasile, Jane Gambino as Administrator of Estate, Plaintiff,

against

The Town of Warwick, et al., Defendants.



EF003997-2017



For Plaintiff:

Eli Wagschal, Esq., Richard L. Giampa Esq., P.C., Bronx, NY

For Town of Warwick Defendants:

Harold L. Moroknek, Esq., Marshall Dennehy Warner Coleman & Goggin, Rye Brook, NY
Catherine M. Bartlett, J.

The following papers numbered 1 to 9 were read on the Town of Warwick Defendants' motion to dismiss the Second Amended Complaint, converted pursuant to CPLR §3211(c) to a motion for summary judgment:



Notice of Motion -Affirmation / Exhibits 1-2

Affirmation in Opposition / Exhibits 3

Reply Affirmation / Exhibits 4

Defendants' Supplemental Affirmation / Exhibits - Affidavits (2) / Exhibits 5-7

Plaintiff's Supplemental Affirmation / Exhibits - Affidavit 8-9

Upon the foregoing papers it is ORDERED that the motion is disposed of as follows:

The Town of Warwick Defendants moved pursuant to CPLR §3211(a)(3, 7) to dismiss the Second Amended Complaint. By prior Order dated August 23, 2018, this Court converted Defendants' motion, pursuant to CPLR §3211(c), to a motion for summary judgment, and permitted the parties to make such additional submissions on the motion as they deemed necessary or appropriate.



Plaintiff's Second Amended Complaint

The Second Amended Complaint (the "Complaint") herein alleges that on August 20, 2015, at about 4:45 p.m., decedent Nicholas Christian Gambino-Vasile (hereinafter, the "Decedent") was unlawfully pulled over for a traffic stop by Town of Warwick Police Officer John D. Rader while Officer Rader was directing traffic at a Town of Warwick intersection. When the Decedent did not stop, Officer Rader pursued the Decedent at a high rate of speed, and radioed for back up. Other Town of Warwick police officers, including Chief Thomas F. McGovern, as well as Village of Florida police officers Stanley C. Lupinski and John M. Carr responded and pursued Decedent at a high rate of speed although they became aware of the identity of the vehicle and its owner through radio communications with the police dispatcher. The Complaint further alleges:

20.The unlawful high speed pursuit went on for an extended period of time across the span of two towns and resulted in the decedent crashing the 2005 Acura RSX with New York license plate number GTV1585 which he was driving. The defendant officers pursued the decedent for a prolonged period of time and had multiple chances to withdraw from the pursuit but made the conscious decision to continue the unsafe pursuit which was in violation of the applicable laws, ordinances, police guidelines and rules. The decedent's automobile accident occurred on Main Street in the Village of Florida, New York on August 20, 2015. The crash was the direct result of the defendants' pursuit of the decedent.

21.The force used to pursue decedent [] was unnecessary, unreasonable, reckless and/or excessive. At no time did the Defendant police officers have any legal cause or excuse for Plaintiff's stopping and engaged in the pursuit with the intent to physically harm the decedent beyond merely stopping and searching his vehicle.



Based on the foregoing, the Complaint alleges causes of action for "negligence" (recklessness), wrongful death, negligent infliction of emotional distress and intentional infliction of emotional distress.

[*2]Pertinent Facts

A.The Affidavit of Police Officer John Rader

Police Officer Rader's affidavit states in pertinent part:

6.August 20, 2015 was a cloudy day with clear visibility and dry roads.

7.I was conducting traffic control in Warwick due to a malfunctioning traffic light, when a small two door Acura approached the intersection. At that time, I could only identify the driver as a white male in his late teens or early twenties.

8.The driver did not comply with my instruction to stop. He did instead continue to approach the intersection at an accelerated rate of speed and revved his engine in a threatening manner. Given the driver's non-compliance with my directive, I therefore advised the driver to pull to the shoulder of the road into a parking lot adjacent to the location where I was standing.

9.The driver of the blue Acura began to pull to the shoulder and then suddenly and unlawfully sped off in a northerly direction as I walked toward his vehicle.

10.I then went to my vehicle and began traveling in the last known direction of the blue Acura and radioed to the Warwick police dispatch.

11.I have listened to the radio transmission recorded by the Warwick Police Department, attached hereto as Exhibit B, as provided by my counsel.

12.As indicated on the audio, I radioed to my department to notify the Village of Florida that there was a blue Acura heading in their direction possibility [sic] traveling at a high rate of speed.

13.I was never in pursuit of the blue Acura. I recall that I was always about a minute behind the blue Acura.

14.Multiple civilian vehicles remained between my vehicle and the blue Acura.

15.I never saw the blue Acura after it pulled away from the traffic control stop.

16.I maintained control of my vehicle at all times, and I was not involved in any collisions, nor did I come into contact with any vehicle.

17.Neither I nor my vehicle come into contract with Mr. Vasile's vehicle, nor did I have the opportunity to do so.

18.To my knowledge, no other Warwick officers came into contract with Mr. Vasile's vehicle before it struck another vehicle on August 20, 2015.

B.The Affidavit of Chief Thomas F. McGovern

The affidavit of Chief Thomas F. McGovern, Chief of Police in the Town of Warwick for



18 years and a member of the department for 39 years, states in pertinent part:

7.August 20, 2015 was a cloudy day with clear visibility and the roads were dry.

8.I have listened to the radio transmission recorded by the Warwick Police Department, attached hereto as Exhibit B, as provided by my counsel. I personally head a radio transmission from Warwick Police Lieutenant Rader advising of a Blue Acura driving at a high rate of speed towards Florida on



Route 94.

9.As indicated on the audio, I stated that the subject blue Acura passed my stopped vehicle while traveling at a high rate of speed.

10.I then indicated that I could not keep up with the blue Acura, which upon my experience, I estimated was approximately 90 miles per hour.

11.I attempted to follow the blue Acura for a short period of time, though I quickly realized any attempt to continue would be futile and discontinued my pursuit.

12.I further indicated that the blue Acura was heading toward the Village of Florida.

13.I have reviewed a copy of the surveillance video from El Azteca, attached hereto as Exhibit C, as provided by my counsel which captured the subject event.

14.During my brief pursuit of Mr. Vasile, multiple civilian vehicles remained between us at all times as confirmed by Exhibit C.

15.After several civilian vehicles passed, the surveillance video shows that the first police vehicle was a white SUV with a blue stripe. Upon information and belief, this vehicle belongs to the Village of Florida Police Department.

16.I maintained control of my vehicle at all times, and I was not involved in any collisions, nor did I come into contact with any vehicles.

17.Neither I nor my vehicle came into contact with Mr. Vasile's vehicle, nor did I have the opportunity to do so.

18.To my knowledge, no Warwick officer...came into contact with Mr. Vasile's vehicle before it struck another vehicle on August 20, 2015.

C.The Affidavit of Mary Ann Houston

Plaintiff proffered the affidavit of Mary Ann Houston, who avers in pertinent part:

On August 20, 2015, at about 4:45 p.m., I was driving on Route 94, heading South, from the Village of Florida towards Warwick. I was headed to my in-law's house to pick up my children after work. Rt. 94 is heavily trafficked, and at the time there was a lot of traffic. The area is residential, curvy street. I clearly remember that day, as it was onthat afternoon that I witnessed police vehicles traveling very fast in the wrong lane against oncoming traffic, even around curves and blind spots, forcing me and other vehicles to pull off the road narrowly avoiding head-on collisions.I was driving South on Rt. 94, approaching Garden State Koi, when I observed a blue Acura, followed by Warwick police, with lights and siren on, in the Northbound lane traveling very fast. While being chased by the police, the Acura swerved out of the Northbound lane into my lane of traffic. I ran off the road, onto the shoulder, in orderto avoid a head-on collision. The police were right behind the Acura when the head-on collision was narrowly avoided. Yet, the police did just as the Acura did, passingnorthbound cars in the southbound lane of traffic at increasingly high speed narrowly avoiding collision.The Acura should have been able to see the police in his rear view mirror, as they were only seconds behind him and at a maximum distance of 45 feet. As I traveled on, I observed two more police vehicles heading North, within seconds of the blue Acura,

and each other.

D.The Village of Florida Police Officers

Village of Florida police officers Stanley C. Lupinski and John M. Carr first observed Decedent's vehicle traveling north on Route 94 less than a mile and one-half from the point where the accident subsequently occurred. Officer Carr radioed his observation of Decedent's vehicle passing two more vehicles in the Village of Florida, and 55 seconds later radioed his observation of Decedent's accident. (See, Decision and Order dated August 23, 2018 granting Village of Florida Defendants' motion for summary judgment).

E.The Warwick Police Audio Recording

The Warwick Police audio recording of communications by and between the police officers and the Warwick dispatcher shows that this incident took place within the span of approximately four minutes, and reflects the following sequence of events:

:01-:12Officer Rader requests police units on Route 94 heading into the

Village of Florida

:40Officer Rader reports a blue Acura traveling at a high rate of speed toward the Village of Florida1:40Chief McGovern reports sighting the blue Acura, license plate GTV 15852:01Dispatcher reports vehicle registered to Gambino2:45Chief McGovern reports inability to keep up with blue Acura2:50Chief McGovern reports blue Acura passed three cars, passing another3:00Officer Carr reports blue Acura passed two cars heading into the Village of Florida3:05Chief McGovern reports blue Acura must be going 90 miles per hour3:55Officer Carr reports blue Acura roll over

F.The El Azteca Restaurant Surveillance Video

The El Azteca Restaurant is located in Florida, New York, less than one-half mile south of the situs of the Decedent's accident. The El Azteca surveillance camera video shows all vehicles passing the restaurant on Route 94 during the time shortly before the accident. It reflects the following sequence of events:

(1)Route 94 is a two-lane road with a double yellow line down the middle.

(2)The blue Acura passed El Azteca at a very high rate of speed on the wrong side of the double yellow line on Route 94 heading north toward the Village of Florida.

(3)Following the blue Acura, six (6) civilian vehicles traveling north slowed down and moved to the right side of Route 94, evidently in response to siren / lights of the Village of Florida Police SUV.

(4)The Village of Florida Police SUV, in which Officers Lupinski and Carr



were riding, passed El Azteca traveling north on Route 94 with lights flashing, approximately twenty (20) seconds behind Decedent's vehicle.

(5)The Village of Florida Police SUV was traveling at a rate of speed significantly above that of normal traffic but significantly below that at which the blue Acura was traveling.

(6)Another civilian vehicle passed El Azteca heading north.

(7)Approximately 13 to 15 seconds after the Village of Florida Police SUV, two [*3]Town of Warwick police vehicles passed El Azteca traveling north on Route 94 with lights flashing.

(8)Two more civilian vehicles passed El Azteca heading north.

(8)Approximately 40 seconds after the Village of Florida Police SUV, a third Town of Warwick police vehicle passed El Azteca traveling North on Route 94 with lights flashing.

G.The State Police Accident Reconstruction Report

The New York State Police performed a full accident reconstruction investigation.



The investigator's conclusions, set forth in detail in the accident reconstruction report, are in

substance as follows:

(1)Route 94, at the situs of the accident, is a two-lane road with a double yellow line down the middle.

(2)The speed limit at the situs of the accident is 30 miles per hour.

(3)The Decedent was traveling north on Route 94 at a speed of 66 miles per hour.

(4)As he attempted to negotiate a curve in the road to the right, his blue Acura went into a "critical speed yaw", started rotating clockwise, and crossed the double yellow line from the northbound lane into the southbound lane.

(5)The blue Acura struck an oncoming vehicle in the southbound lane and went into a counter-clockwise rotation.

(6)The blue Acura struck a second oncoming vehicle in the southbound lane and was propelled to the right curb, where it overturned.

(7)The primary contributing factor for the collision was the Decedent's traveling at an excessive rate of speed and failure to keep right.

(8)There was no evidence of roadway defects, view obstructions, environmental conditions or vehicular defects which could have contributed to the collision.



[*4]Legal Analysis

A.Preliminary Issues

Before addressing the legal issues raised upon the motion pending before the Court, there are two preliminary matters that must be addressed: (1) whether this Court's prior Decision and Order dated August 23, 2018 granting summary judgment dismissing Plaintiff's claims as against the Village of Florida Defendants is dispositive of the issues before the Court on the pending motion for summary judgment by the Town of Warwick Defendants; and (2) whether Plaintiff's extant claims are precluded altogether by virtue of the doctrine articulated by the Court of Appeals in Alami v. Volkswage of America, Inc., 97 NY2d 281 (2002), Manning v. Brown,



91 NY2d 116 (1997), and Barker v. Kallash, 63 NY2d 19 (1984).

1.The Court's Prior Decision Is Not Dispositive Of The Plaintiff's Claims Against The Town of Warwick Defendants

This Court's prior Decision and Order dated August 23, 2018 awarding the Village of Florida Defendants summary judgment dismissing Plaintiff's claims is not dispositive, as a matter of law, of Plaintiff's claims against the Town of Warwick Defendants. There are distinguishing factors which compel a fresh analysis of the issues. First, whereas the Florida police merely responded to a radio transmission for help from the Warwick police at the tail



end of the episode, the Warwick Police (a) initiated interaction with the Decedent via the attempted traffic stop, (b) instituted the pursuit of the Decedent's vehicle, and (c) continued pursuit over the course of four minutes and several miles. Second, whereas there was no evidence whatsoever of any reckless conduct on the part of the Village of Florida police, Plaintiff, on Warwick's motion, has proffered via the affidavit of third-party witness

Mary Ann Houston facts which it contends evidence recklessness on the part of the Town

of Warwick police.

2.The "Barker-Manning" Preclusion Doctrine

In Saarinen v. Kerr, 84 NY2d 494 (1994), the Court of Appeals held that "a police officer's conduct in pursuing a suspected lawbreaker may not form the basis of civil liability



to an injured bystander unless the officer acted in reckless disregard for the safety of others."

Id., at 501 (emphasis added). The Saarinen Court's holding was grounded in its disquisition concerning the purpose of Vehicle and Traffic Law §1104, to wit, to balance the needs of police officers and other emergency personnel with "the risk of harm to innocent motorists and pedestrians" (id., at 502 [emphasis added]): [VTL §1104] represents a recognition that the duties of police officers and other emergency personnel often bring them into conflict with the rules and laws that are intended to regulate citizens' daily conduct and that, consequently, they should be afforded a qualified privilege to disregard those laws where necessary to carry out their important responsibilities. Where the laws in question involve the regulation of vehicular traffic, the exercise of this privilege will inevitably increase the risk of harm to innocent motorists and pedestrians. Indeed, emergency personnel must routinely make conscious choices that will necessarily escalate the over-all risk to the public at large in the service [*5]of an immediate, specific law enforcement or public safety goal. Measuring the "reasonableness" of these choices against the yardstick of the traditional "due care under the circumstances" standard would undermine the evident legislative purpose of Vehicle and Traffic Law §1104, i.e., affording operators of emergency vehicles the freedom to perform their duties unhampered by the normal rules of the road. ....The "reckless disregard" test, which requires a showing of more than a momentary judgment lapse, is better suited to the legislative goal of encouraging emergency personnel to act swiftly and resolutely while at the same time protecting the public's safety to the extent practicable [cit.om.]. Id., at 501-502 (emphasis added).

In this case, of course, the Decedent was not an innocent "bystander" but the lawbreaker who provoked police pursuit by failing to comply with a traffic policeman's directive and speeding recklessly away, all in violation of the Vehicle and Traffic Law. Query, in such circumstances, whether the lawbreaker is entitled to recover for injuries resulting from the reckless operation of his vehicle in an effort to elude the police, even under the enhanced "reckless disregard" standard of VTL §1104?

The Third Department has without comment applied Saarinen's "reckless disregard" standard in adjudicating the claims of lawbreakers injured in such circumstances. See, Greenawalt v. Village of Cambridge, 67 AD3d 1158, 1159 (3d Dept. 2009); Rouse v. Dahlem, 228 AD2d 777 (3d Dept. 1996); Palella v. State of New York, 141 AD2d 999 (3d Dept. 1988).[FN1]

To be sure, the lawbreaker enjoys constitutional protections and could potentially recover under 42 U.S.C. §1983 for injuries resulting from the violation of his constitutional rights to freedom from unreasonable seizure and from the use of excessive force. See, e.g., Farley v. Town of Hamburg, 34 AD3d 1294, 1295 (4th Dept. 2006). However, all such claims against



the Town of Warwick Defendants were voluntarily dismissed with prejudice in the context of Plaintiff's prior federal court action. Barring a constitutional violation, the question arises whether such claims as Plaintiff here interposes are not subject to preclusion as a matter of public policy per Alami v. Volkswage of America, Inc., supra, Manning v. Brown, supra, and Barker v. Kallash, supra.

In Manning v. Brown, supra, the Court of Appeals wrote:

In Barker v. Kallash, 63 NY2d 19..., we held, as a matter of public policy, that wherea plaintiff has engaged in unlawful conduct, the courts will not entertain suit if the plaintiff's conduct constitutes a serious violation of the law and the injuries for whichthe plaintiff seeks recovery are the direct result of that violation. The policy derivesfrom the rule that one may not profit from one's own wrongdoing [cit.om.] and pre-cludes [*6]recovery "at the very threshold of the plaintiff's application for judicial relief"

(Barker v. Kallash, supra, 63 NY2d at 26...). "[R]ecovery is denied, not because plaintiff contributed to his injury, but because the public policy of this State generally denies judicial relief to those injured in the course of committing a serious criminal act" (id., at 24...).....

In Barker we distinguished between conduct that is regulated by statute and activitiesthat are entirely prohibited by law. Violation of a statute governing the manner in which activities should be conducted merely constitutes negligence and the principles of com-parative negligence come into play. Even where the plaintiff engages in prohibited conduct recovery is not always precluded. "A complaint should not be dismissed merely because the plaintiff's injuries were occasioned by a criminal act" (Barker v. Kallash, supra, 63 NY2d at 25...). Preclusion is required only where the plaintiff's injuries"were a direct result of a serious violation of the law involving hazardous activities

which were not justified under the circumstances" (63 NY2d at 19, 26..., supra). Manning v. Brown, supra, 91 NY2d at 120-121 (emphasis added).

The Barker-Manning doctrine of public policy preclusion was further refined by the Court of Appeals in Alami v. Volkswagen of America, Inc., supra. The Court wrote:

The Barker/Manning rule is based on the sound premise that a plaintiff cannot rely upon an illegal act or relationship to define the defendant's duty (see, W. Page Keeton et al., Prosser and Keeton, Torts §36, at 232 [5th ed 1984]). We refuse to extend its application beyond claims where the parties to the suit were involved in the underlying criminal con- duct, or where the criminal plaintiff seeks to impose a duty arising out of an illegal act.

Alami, supra, 97 NY2d at 287 (underscoring added). In response to the dissenting judge's objections that "the majority offers no theory explaining when a duty 'arises out of' illegal conduct", and that its rule would permit a burglar to recover from a homeowner for injuries caused by a defective staircase (id., at 289-291), the majority clarified: Although landowners do have a general duty to the public to maintain their premises in a reasonably safe condition (see, Basso v. Miller, 40 NY2d 233...), this duty does not exist in the abstract. It takes form when someone enters the premises and is injured. Thus, the injured burglar is not entitled to benefit from his burglary because he cannot invoke a duty triggered by his unlawful entry. Id., at 287-288.

Thus, an injured lawbreaker's claim for recovery will be precluded if (1) he engaged in a serious violation of the law involving hazardous activities which were not justified under the circumstances, (2) the injuries for which he seeks recovery are the direct result of that violation, and (3) he seeks to impose on the defendant a duty arising out of or triggered by his illegal act.



It appears to the Court that all three elements may be satisfied in the circumstances of this case.

First, the Decedent was guilty of serious violations of the law, operating his vehicle at breakneck speeds far in excess of the established speed limits and repeatedly crossing the double [*7]yellow line into oncoming traffic to pass slower-moving traffic in his lane, all in an unlawful effort to elude the police. In Manning v. Brown, supra, the Court of Appeals found that reckless and excessively fast driving puts the public at grave risk and constitutes a serious violation of the law. Id., 91 NY2d at 121-122. See also, Hathaway v. Eastman, 122 AD3d 964, 966 (3d Dept. 2014).

Second, it is indisputable that the Decedent's injuries were the direct result of his serious violation of the law in recklessly speeding and crossing the double yellow line. (See, New York State Police Accident Reconstruction Report).

Third, it would appear that what Plaintiff seeks to do in this case is impose a duty arising out of or triggered by the Decedent's violation of the law. To paraphrase the Court of Appeals in Alami v. Volkswagen of America, Inc., supra, while the police have a general duty to the public to perform emergency services without recklessly disregarding the safety of others (see, VTL §1104[e]), that duty does not exist in the abstract, it was here triggered by the Decedent's own serious violation of the law. As the Court of Appeals observed in Saarinen, supra,

Having observed erratic and dangerous driving on the part of defendant Kerr, Officer McGowan was duty-bound to investigate, using all reasonable means, including pursuit, to stop the lawless vehicle's forward progress...Even if Kerr was not impaired, it is clear that his driving posed a threat to the public safety. Under these circumstances, the officer should have the right to use whatever means are necessary, short of the proscribed recklessness, to overtake and stop the offending driver.

Saarinen v. Kerr, supra, 84 NY2d at 502-503. Plaintiff, like the injured burglar, may be precluded from invoking a duty triggered by Decedent's own serious violation of the law.

That said, the parties have neither raised nor briefed the issue of public policy preclusion under Alami v. Volkswage of America, Inc., supra, Manning v. Brown, supra, and Barker v. Kallash, supra. Accordingly, the Court will not decide the issue at this juncture but instead proceed on the assumption that this case is governed by Saarinen and its progeny.

B.Plaintiff Cannot Recover On A Theory Of Negligence, As Her Claims Are Subject To The Enhanced "Reckless Disregard" Standard Applicable To Emergency Police Operations Under VTL §1104

The Vehicle and Traffic Law ("VTL") defines "emergency operation" as, among other things, "the operation...of an authorized emergency vehicle, when such vehicle is engaged in...pursuing an actual or suspected violator of the law..." VTL §114-b.

VTL §1104(a) provides that "[t]he driver of an authorized emergency vehicle, when involved in an emergency operation, may exercise the privileges set forth in this section, but subject to the conditions herein stated." Section 1104(b)(3) provides that "[t]he driver of an authorized emergency vehicle may [e]xceed the maximum speed limits so long as he does not endanger life or property." Section 1104(e), finally, provides that

The foregoing provisions shall not relieve the driver of an authorized emergency

vehicle from the duty to drive with due regard for the safety of all persons, nor shall

such provisions protect the driver from the consequences of his reckless disregard for

the safety of others.

Applying VTL §1104 in the context presented here, the Court of Appeals held that civil liability for a police officer's conduct in pursuing an actual or suspected lawbreaker may not be imposed unless the officer acted in reckless disregard for the safety of others. See, Saarinen v. Kerr, 84 NY2d 494, 501 (1994). The Court wrote:

[W]e hold that a police officer's conduct in pursuing a suspected lawbreaker may not form the basis of civil liability to an injured bystander unless the officer acted in reckless disregard for the safety of others. This standard demands more than a showing of a lack of "due care under the circumstances" — the showing typically associated with ordinary negligence claims. It requires evidence that "the actor has intentionally done an act ofan unreasonable character in disregard of a known or obvious risk that was so great asto make it highly probable that harm would follow" and has done so with conscious indifference to the outcome [cit.om.]. Id. (emphasis added). See also, Frezzell v. City of New York, 24 NY3d 213, 217 (2014).

C.Assuming Arguendo That The Town of Warwick Police Acted With "Reckless Disregard" For The Safety Of Others In Commencing,



Conducting Or Failing To Terminate The Pursuit Of Decedent's

Vehicle, Their Actions Did Not Proximate Cause Decedent's

Accident, The Sole Proximate Cause Of Which Was Decedent's

Dangerously Reckless Operation Of His Own Vehicle

Plaintiff alleges inter alia that Officer Rader had insufficient cause to stop Decedent's vehicle, and that the Town of Warwick police conducted a high speed pursuit of Decedent's vehicle in violation of applicable laws, police guidelines and rules, and over an extended period of time, eschewing an opportunity to withdraw from the chase when the license plate and owner of the blue Acura was determined.

Paraphrasing Saarinen, the Town of Warwick police, having observed erratic and dangerous driving on the Decedent's part, were "duty-bound to investigate, using all reasonable means, including pursuit, to stop the lawless vehicle's forward progress," and had "the right to use whatever means are necessary, short of the proscribed recklessness, to overtake and stop [him]." Saarinen v. Kerr, supra, 84 NY2d at 502-503. See also, Mullane v. City of Amsterdam,



212 AD2d 848, 850 (3d Dept. 1995). Insofar as Town of Warwick police officers themselves violated traffic laws in pursuing the Decedent by traveling at an excessive rate of speed or crossing the double yellow line, they were privileged to do so pursuant to VTL §1104(b)(3, 4). "[C]onduct which violates provisions of the Vehicle and Traffic Law relating to maximum rate of speed, lane-changing procedures, and other rules of the road does not, standing alone, render the operator of an emergency vehicle reckless or provide an independent basis for liability." Turini v. County of Suffolk, 8 AD3d 260, 262 (2d Dept.2004)(citing Szczerbiak v. Pilat, 90 NY2d 553, 557). See, Saarinen v. Kerr, supra, 84 NY2d at 503. Assuming arguendo that the conduct of the pursuit by Town of Warwick police officers violated internal police guidelines, that too would not establish recklessness or provide an independent basis for liability. See, Turini v. County of Suffolk, supra, 8 AD3d at 262; Teitelbaum v. City of New York, 300 AD2d 649, 650 (2d Dept. 2002).

Plaintiff relies on caselaw wherein the Second Department held that the police failed to demonstrate prima facie that they did not act in reckless disregard for the safety of others in commencing, conducting, or failing to terminate a high-speed pursuit of a suspected lawbreaker. See, Foster v. Suffolk Co. Police Dept., 137 AD3d 855 (2d Dept. 2016); Quintana v. Wallace,



95 AD3d 1287 (2d Dept. 2012); Ferrara v. Village of Chester, 57 AD3d 719 (2d Dept. 2008).

In Foster v. Suffolk Co. Police Dept., Officer Bogliole was investigating a "nonpriority call", and had obtained the suspect's identification when an argument ensued and the suspect



got in his car and fled. Officer Bogliole pursued him at high speeds through a residential neighborhood. The suspect, with Officer Bogliole following him, drove through a steady

red light and collided with another vehicle. Id., 137 AD3d at 855. The Second Department, denying the defendants' motion for summary judgment, wrote: [T]he County defendants...failed to establish, prima facie, that Officer Bogliole did not act in reckless disregard for the safety of others in commencing, conducting, or failing to terminate the high-speed pursuit of Licausi's vehicle [cit.om.]. Among other things, there are triable issues of fact as to what occurred just moments before the accident and as to whether Officer Bogliole pursued Licausi in a manner that prevented hin from stopping for fear of a collision with Officer Bogliole's police vehicle. Furthermore, considering the testimony indicating that the pursuit was conducted at high speeds in a residential neighborhood, that Licausi disobeyed several traffic control devices, and that collisions with other cars at earlier intersections were narrowly avoided, there are triable issues of fact as to whether Officer Bogliole should have terminated the pursuit.... Foster, 137 AD3d at 856.

In Quintana v. Wallace, the Second Department likewise denied summary judgment:

[T]he defendant County of Suffolk, in moving for summary judgment, failed to establish, prima facie, that its police officers did not act in reckless disregard for the safety of others in commencing, conducting, or failing to terminate a high-speed, night-time pursuit of a vehicle driven by an individual suspected of failing to signal before turning and unlaw- fully firing a paintball gun at persons or property, during which the subject accident occurred [cit.om.]. The County's submissions failed to eliminate triable issues of fact

as to whether the pursuing officers properly informed the supervising field officer that

the suspect was speeding on a residential road with the vehicle's external lamps turned

off, and that he was continually disobeying traffic control devices. Had the supervising

officer been properly informed, he could have made an informed decision regarding whether the pursuit should be discontinued. Moreover, there are triable issues of fact as to whether the pursuing officers should have terminated the pursuit in light of the facts that the pursuit was conducted at high speeds, up to 90 miles per hour, on residential and commercial streets with speed limits of 35 miles per hour or less, the suspect turned off the vehicle's external lamps during the pursuit, he disobeyed traffic control devices, and he was thought to have committed relatively minor offenses.... Quintana, 95 AD3d at [*8]1287-88.[FN2]

In Ferrara v. Village of Chester, too, summary judgment was denied:

[Appellants] failed to meet their initial burden of establishing, prima facie, that the police officers responding to the emergency did not act in reckless disregard for the safety of others in commencing, conducting, or failing to terminate the high-speed pursuit of another vehicle driven by an individual suspected of violating his parole and drivingwith a suspended license, during which the subject accident occurred [cit.om.]. The appellants' submissions failed to eliminate questions of fact as to whether the principal pursuing officer properly informed the central dispatcher of the location of the suspect's vehicle and whether the suspect was operating his headlights. Moreover, there are issues of fact as to whether the pursuing officer or his supervisor should have commenced the pursuit given the minor offenses the suspect was thought to have committed, or termi- nated the pursuit in light of the fact that it was conducted at high speeds on curving narrow roads, through a construction zone and into oncoming traffic, where the suspect vehicle may not have used headlights.... Ferrara, 57 AD3d at 720.

It appears that certain factors which led the Second Department to deny summary judgment on the issue of "reckless disregard" in Foster, Quintana and Ferrara are present in the case at bar as well. There is evidence that Officer Rader instituted the pursuit of the Decedent's vehicle for a relatively minor offense, to wit, disregarding a traffic policeman's directive to pull over in violation of Section 1102 of the Vehicle and Traffic Law; that Decedent was operating his vehicle recklessly, at high speeds, though residential/commercial areas and into oncoming traffic; and, accepting non-party witness Mary Ann Houston's averments as true, that Town of Warwick police pursued the Decedent at high speeds, crossing over into oncoming traffic and, like the Decedent, narrowly avoiding collision with other vehicles.

In none of this, with the possible exception of the police actions described by Ms. Houston, does the Court discern the requisite evidence of "reckless disregard", i.e., 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. See, Saarinen v. Kerr, supra, 84 NY2d at 501. Nevertheless, assuming arguendo that per Foster, Quintana and Ferrara, supra, the evidence gives rise to triable issues of fact whether the Town of Warwick police commenced, conducted or continued the pursuit of Decedent's vehicle in reckless disregard of the safety of others, the Court concludes that their actions did not proximately cause Decedent's accident, the sole proximate cause of which was the Decedent's dangerously reckless operation of his own vehicle.

The Second Department's decisions in Quintana and Ferrara do not address causation



at all. In Foster, on the other hand, there was a palpable causal link between the police' alleged recklessness and the collision: evidence that Officer Bogliole pursued Mr. Licausi through a steady red light gave rise to an issue of fact "whether Officer Bogliole pursued Licausi in a manner that prevented him from stopping for fear of a collision with Officer Bogliole's police vehicle", thereby proximately causing Licausi's collision with a third vehicle. See, Foster v. Suffolk Co. Police Dept., supra, 137 AD3d at 855, 856. See also, Rockhead v. Troche, 17 AD3d 118, 119 (1st Dept. 2005) (evidence that police chased stolen van at high rate of speed through solid red light gave rise to issue of fact whether reckless conduct by police was proximate cause of van's collision with third vehicle); Rouse v. Dahlem, supra, 228 AD2d 777 (3d Dept. 1996)

(police officer intentionally crossed into opposite lane of traffic and into immediate path of the plaintiff's motorcycle).

Here, in contrast, the evidence, even viewed in the light most favorable to Plaintiff, still gives rise to no inference that the purported recklessness of the Town of Warwick police was a proximate cause of the Decedent's accident. The evidence shows that the day was clear, the roads were dry, and the Town of Warwick officers activated flashing lights and sirens to give



due notice of their pursuit to vehicular traffic on Route 94. Most importantly, if, as Ms. Houston avers, the Town of Warwick police were at one point in close pursuit of Decedent's vehicle, the El Azteca surveillance video conclusively proves that they did not recklessly accelerate and pass other vehicular traffic in an effort to keep pace with Decedent's blue Acura, but effectively abandoned close pursuit and were nowhere near his vehicle when the accident occurred. The surveillance video shows that at the El Azteca restaurant, less than one-half mile from the situs of the accident, there were no less than seven (7) civilian vehicles plus the Village of Florida police SUV between the Decedent's blue Acura and the nearest Town of Warwick police vehicle, which was traveling approximately 33 seconds behind the Decedent. Assuming that as per the State Police Accident Reconstruction Report the Decedent was traveling at a speed of 66 miles per hour — Plaintiff's own estimate based on the surveillance video is 68 miles per hour — the Town of Warwick police were approximately 3,200 feet, or six-tenths of a mile, behind the Decedent's vehicle.

In analogous circumstances, where the police did not keep pace with the lawbreaker and/or were not close to his vehicle when the accident occurred, a number of courts have concluded as a matter of law that the lawbreaker's reckless driving, and not the police pursuit, was the sole proximate cause of the accident. See, e.g., Paige v. Rocco, 214 AD2d 662, 662-663 (2d Dept.), lv. denied 86 NY2d 710 (1995); Greenawalt v. Village of Cambridge, supra,



67 AD3d 1158 (3d Dept. 2009); Dibble v. Town of Rotterdam, 234 AD2d 733 (3d Dept. 1996), lv. denied 89 NY2d 811 (1997); Mullane v. City of Amsterdam, supra, 212 AD2d 848 (3d Dept. 1995); Palella v. State of New York, supra, 141 AD2d 999, 1000-01 (3d Dept. 1988); Jessop v. City of Niagara Falls, 247 AD2d 902, 903 (4th Dept. 1998).

In Paige v. Rocco, supra, the Second Department wrote:

[T]he appellant, State Trooper James Marrone, repeatedly directed Rocco to pull over

and...Rocco ignored the appellant's directions. In an attempt to get Rocco to pull over, the appellant pulled in front of Rocco's automobile in order to cause Rocco to slow down. Rocco's automobile struck the appellant's car in the rear, causing the appellantto spin off onto the shoulder of the parkway. Rocco then sped from the scene, cutting across the highway, and accelerating to a speed of approximately 90 miles per hour. Shortly thereafter, Rocco's automobile struck the Bethpage State Parkway overpass...

....

Under the circumstances of this case,...we conclude as a matter of law that the appellant's conduct was not a proximate cause of the accident [cit.om.]. Assuming that the appellant was negligent, the accident was caused by Rocco's reckless driving rather than the appel-lant's conduct (see, e.g., Mullane v. City of Amsterdam...; Palella v. State of New York...).

Paige, 214 AD2d at 662-663. In Paige, as here, the lawbreaker's speeding recklessly away from

the initial police pursuit severed any causal link between that pursuit and the ensuing accident and rendered the lawbreaker's own reckless driving the sole proximate cause thereof.

To like effect is the Third Department's decision in Dibble v. Town of Rotterdam, supra.



The Dibble Court rejected claims strikingly similar to those advanced by Plaintiff in the case at bar. In Dibble:

[P]laintiffs maintain that [Officer] Minto unreasonably engaged in a high-speed

pursuit of an intoxicated and agitated driver who had only committed minor traffic

infractions, thereby goading Lopez into the behavior that resulted in Dibble's

injuries. According to plaintiffs, it was reckless, and in violation of the police

department's own rules, for Minto to continue the pursuit after he called in Lopez's

license plate number and determined that the car was not stolen and that Lopez was

not wanted for any crimes.



Dibble, 234 AD2d at 735. Although Officer Minto maintained pursuit over a considerable time and distance and at speeds in excess of the speed limit, the lawbreaker "conceded that Minto was a distance behind him during the pursuit and, although closer right before the crash, was not 'on [his] tail'." Id. The Third Department accordingly held that "'the proximate cause of the accident was [Lopez's] erratic and improper operation of his vehicle, not the manner in which the police officer conducted the pursuit' (Mullane v. City of Amsterdam...; see, Palella v. State of New York...). Id., at 736. Here, similarly, even if the Court were to conclude that the Town of Warwick police determination to pursue the Decedent in the first instance, to continue the pursuit after identifying the license plate and owner of the blue Acura, and/or to pursue Decedent in the manner indicated by Mary Ann Houston were reckless and unjustified, Decedent sped away and put substantial time and distance between himself and the Warwick police before the accident occurred, thereby rendering his own reckless operation of his vehicle, and not the police pursuit, the proximate cause of the accident.

To the very same effect is Mullane v. City of Amsterdam, supra. In Mullane, Officer DiMezza observed two pick-up trucks speeding in violation of the Vehicle and Traffic Law and gave chase.

[Officer DiMezza] followed Barnes' truck north on State Route 30 through a less-populated area and then east on State Route 29 through a rural area at speeds sometimes approaching 90 miles per hour. DiMezza continued the pursuit on Route 29 but reduced his speed and fell back because of several curves in the road, although he did not lose [*9]sight of the truck and he kept his lights and siren on during the entire episode. Barnes, however, continued at a high rate of speed, failed to negotiate a curve, veered into the westbound lane and collided head-on with plaintiffs' vehicle....

Mullane, 212 AD2d at 849. On these facts, the Court held that "the proximate cause of the accident was Barnes' erratic and improper operation of his vehicle, not the manner in which

the police officer conducted the pursuit." Id., at 850. See also, Jessup v. City of Niagara Falls, supra, 247 AD2d at 903 (where lawbreaker pulled away from active police pursuit such that officers were 15 to 30 seconds behind his vehicle when accident occurred, the sole proximate cause of the accident was the driver's dangerous operation of his vehicle).

Finallly, in Greenawalt v. Village of Cambridge, supra, both the operative facts and the nature of the plaintiff's claims are akin to those of the case at bar. The Greenawalt Court wrote:

Sometime after 1:00 a.m. on June 12, 2004, while carrying a passenger on the back ofhis motorcycle, plaintiff was traveling at 43 miles per hour in a 30 mile-per-hour zone through the Village of Greenwich, Washington County when he passed a Greenwich police officer. When the officer pulled out behind plaintiff's motorcycle, instead of pulling over, plaintiff admittedly opted to attempt to elude the police; he increased his speed and proceeded out of the sight of the Greenwich officer who then radioed aheadto defendant's police department. A police officer from the Village of Cambridge, Washington County then gave chase after the motorcycle sped into and through Cambridge a high rate of speed. After approximately 10 minutes, the chase — which reached speeds nearing 90 miles per hour — ended when plaintiff lost control of the motorcycle. Plaintiff and his passenger were thrown from the motorcycle as it left the road, resulting in injuries to both.We conclude that plaintiff has failed to allege facts that could support a finding that the conduct of the officers who pursued his motorcycle was a proximate cause of his accident and, therefore, summary judgment was properly granted. The majority of plaintiff's allegations of recklessness — the officers' alleged failure to follow certain departmental protocols, their alleged use of a roadblock, their decision to give chase without considering the severity of plaintiff's initial offense, and their decision to continue to pursue him after obtaining the motorcycle license — even if established, did not cause this accident. Indeed, plaintiff commenced traveling at a high rate of speed immediately upon being sighted by police. Cambridge police did not begin pursuit until police witnessed plaintiff traveling at an excessive rate of speed, ignoring a traffic signal and carrying a passenger who appeared to want to get off the motorcycle. Thereafter, plaintiff success-fully passed the alleged roadblock — the existence of which police deny — and continued traveling at a high rate of speed for over 10 minutes, in blatant disregard for the safetyof himself, his passenger and others. Thus, as a matter of law, we find that plaintiff's operation of his motorcycle, and not the manner in which defendant's officers conducted their pursuit, was the proximate cause of the accident [cit.om.]. Greenawalt, supra, 67 AD3d at 1159-60.

The Greenawalt Court, in affirming an award of summary judgment for the police defendants, held as a matter of law that "plaintiff's operation of his motorcycle, not the manner in which defendant's officers conducted their pursuit, was the proximate cause of the accident."



Id., 67 AD3d at 1160.

Under the case authority reviewed hereinabove, this Court finds as a matter of law that no alleged recklessness on the part of the Town of Warwick police proximately caused Decedent's accident. Regardless of whether Officer Rader had sufficient cause to stop Decedent's vehicle in the first instance, the pursuit did not commence until Decedent drove away at a high rate of speed to elude the police. Regardless of whether, as non-party witness Mary Ann Houston avers, Town of Warwick police were recklessly pursuing Decedent, at a time when Plaintiff claims pursuit ought to have been terminated (because the vehicle's owner had been identified), Decedent thereafter pulled so far ahead of the Warwick police as to dissolve any temporal or spatial connection between the alleged reckless pursuit and the occurrence of the fatal accident. In these circumstances, Decedent's dangerously reckless operation of his own vehicle was, as a matter of law, the sole proximate cause of the accident.

D.Conclusion

By reason of the foregoing, Plaintiff's claims for "negligence" (recklessness), wrongful death and negligent infliction of emotional distress must be dismissed. Plaintiff's claim for intentional infliction of emotional distress must likewise be dismissed because the circumstances surrounding the Town of Warwick police pursuit of Decedent's vehicle did not constitute "extreme and outrageous conduct, which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society." See, Wyllie v. District Attorney of County of Kings, 2 AD3d 714, 720 (2d Dept. 2003); Sylvester v. City of New York, 23 Misc 3d 1139(A)



at *5 (Sup. Ct. NY Co. 2009). Therefore, the motion of all Town of Warwick Defendants for summary judgment is granted in its entirety.

It is therefore

ORDERED, that the motion of all Town of Warwick Defendants for summary judgment is granted, and it is further

ORDERED, that Plaintiff's Second Amended Complaint is dismissed.

The foregoing constitutes the decision and order of this Court.



Dated: December 11, 2018E N T E R

Goshen, New York

____________________________________

HON. CATHERINE M. BARTLETT, A.J.S.C. Footnotes

Footnote 1:In Palella v. State of New York, however, the Third Department having concluded that the police defendants were not liable under the VTL §1104 standard, stated that it "need not further determine whether claimant's participation in the car theft would, as a matter of law, preclude his right to recover for the damages sustained (see, Barker v. Kallash...)." Id., 141 AD2d at 1001.

Footnote 2:The Second Department subsequently affirmed a jury verdict in favor of the County of Suffolk and against the plaintiff. See, Quintana v. Wallace, 131 AD3d 1221 (2d Dept. 2015).