Robinson v County of Suffolk

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Robinson v County of Suffolk 2020 NY Slip Op 35165(U) October 5, 2020 Supreme Court, Suffolk County Docket Number: Index No. 609419/2018 Judge: Joseph A. Santorelli 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. INDEX NO. 609419/2018 FILED: SUFFOLK COUNTY CLERK 10/08/2020 11:27 AM NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 10/08/2020 NAL ORIGINAL ORIGI INDEX No. INDEX No. ORDER FORM ORDER SHORT SHORT FORM 609419/2018 609419/2018 ·201902367MV CAL. No. CAL. NO.201902367MV OF NEW YORK SUPREME COURT STATEOFNEWYORK COURT - STATE SUPREME COUNTY · LA.S. SUFFOLK COUNTY PART 10 - SUFFOLK I.A.S. PART PRESENT: PRESENT: 6/4/20 MOTION DATE _6~/4~/2~0_ MOTION DATE 8/27/20 8/27/20 DATE ADJ. DATE ADJ. MD Mot. Seq. # 001 MD Mot. Seq.# JOSEPH A. SANTORELLI Hon. _;:;..;JO:::..:S=E=P--=-H-=---=-=A=--=SA=N~T-=O=RE= L=L-=-I_ Justice of the Supreme Court Court the Supreme Justice of --------------------~------------------------------------------X ---------------------------------------------------------------X ASSOC IATES, LLP CAMPOLO MIDDLETON MIDDLETON & ASSOCIATES, CAMPOLO Plaintiffs Attorney Attorney for Plaintiffs Highway, Suite 4175 Suite 400 Memorial Highway, Veterans Memorial 4175 Veterans 11779 York Ronkonkoma, New York 11779 Ronkonkoma, New SARAH ROBINSON and CHRISTOPHER CHRISTOPHER ROBINSON and SARAH ROBINSON, ROBINSON, Plaintiffs, Plaintiffs, against - againstCOUNTY SUFFOLK COUNTY SUFFOLK, SUFFOLK COUNTY COUNTY OF SUFFOLK, POLICE DEPARTMENT DEPARTMENT and and ERIC ERIC POLICE DORFMAN, DORFMAN, ESQ. DENNIS COHEN, ESQ. DENNIS M. COHEN, Suffolk County Attorney County Attorney' Suffolk Highway Memorial Highway Veterans Memorial 100 Veterans P.O. Box Box 6100 6100 York 11788 New York Hauppauge, Hauppauge, New Defendants. Defendants. ---------------------------X --------------------------------------------------------------------------------------------X Show Order to Show Motion/ Order of Motionl Notice of judgment : Notice summary judgment: Upon motion for summary e-filed motion this e-filed read on this papers read following papers Upon the following Dorfinan, Eric and Department, Police County Suffolk Cause and supporting papers filed by defendants County of Suffolk. Suffolk County Police Department, and Eric Dorfinan, Suffolk, of County defendants by filed papers Cause and supporting papers filed by and supporting Affidavits and Answering Affidavits 2020 ; Notice of Cros~ Motion Motion and supporting papers _; Answering supporting papers papers_; and supporting Notice of May 4, 2020 on May 25, 2020 ; Other August 25,2020 Filed on August papers Filed .· plaintiffs, and supporting supporting papers Other sur-reply sur-reply Affidavits and Replying Affidavits 2020 ; Replying August 6, 2020 plaintiffs, on August 2020 ; it is 26. 2020 August 26, filed by plaintiffs, plaintiffs, on August Police County Police Suffolk County Suffolk, Suffolk of Suffolk, ORDERED County of defendants County motion by defendants the motion that the ORDERED that them the complaint Department, Eric Dorfman summary judgment dismissing the complaint as asserted asserted against against them judgment dismissing Dorfman for summary Department, and Eric denied. is denied. injuries she damages for injuries recover damages This Sarah Robinson Robinson to recover plaintiff Sarah commenced by plaintiff was commenced action was This action Police County Suffolk a with collided with Suffolk County Police vehicle collided allegedly motor vehicle her motor when her 2017, when April 19, 2017, on April sustained on allegedly sustained Dorfman, at the Police Officer Department (SCPD) vehicle, operated by Suffolk Suffolk County County Police Officer Eric Eric Dorfman, vehicle, operated Department (SCPD) Plaintiff York. Plaintiff New York. Sinai, Mount Road, intersection of North Country Road and Mount Sinai-Coram Road, in Mount Sinai, New intersection of North Country Road and Mount Sinai-Coram Plaintiffs accident. Plaintiffs the accident. causing the alleges manner, causing reckless manner, vehicle in a reckless the vehicle operated the Dorfman operated Officer Dorfman that Officer alleges that services. of husband, Christopher Robinson, sues derivatively for loss of services. loss derivatively sues husband, Christopher Robinson, [* 1] 1 of 4 FILED: SUFFOLK COUNTY CLERK 10/08/2020 11:27 AM NYSCEF DOC. NO. 32 INDEX NO. 609419/2018 RECEIVED NYSCEF: 10/08/2020 Robinson Robinson v County County of of Suffolk Suffolk Index Index No. 609419/2018 609419/2018 Page 2 Police Department, Department, and Eric Eric Dorfman Defendants Defendants County County of of Suffolk, Suffolk, Suffolk Suffolk County County Police Dorfman ((collectively collectively "Suffolk now move move for summary judgment dismissing complaint, arguing arguing that that "Suffolk County") County") now summary judgment dismissing the complaint, Officer Dorfman was within his official official duties Officer Dorfman was acting acting within duties and responding responding to an emergency emergency at the time time of of the if he acted acted with with reckless accident liable for injuries injuries to plaintiff plaintiff if accident and that, therefore, therefore, he can can only only be liable reckless disregard argues that that Officer Dorfman did not disregard in the operation operation of of his vehicle. vehicle. Suffolk Suffolk County County further further argues Officer Dorfman operate his police Suffolk County inter operate police vehicle vehicle in a reckless reckless manner. manner. In support support of of its motion, motion, Suffolk County submits, submits, inter alia, transcripts transcripts of Muncipal Law Law §S 50-h hearing testimony testimony of of plaintiffs, plaintiffs, along of the General General Muncipal 50-h hearing along with with the t!1e deposition testimony of plaintiffs and Officer Dorfman. Plaintiffs Plaintiffs oppose motion, transcripts transcripts of of tpe deposition testimony of plaintiffs Officer Dorfman. oppose the motion, arguing with respect respect to the happening happening of the accident arguing that questions questions of of fact exist exist with of the accident and whether whether or not Officer Dorfman activated Plaintiffs submit, inter alia, a surveillance video of intersection Officer Dorfman activated his sirens. sirens. Plaintiffs submit, inter surveillance video of the intersection at the time of John E. Serth, Jr., an accident accident reconstructionist. reconstructionist. of the accident, accident, and the affidavit affidavit of of John Initially, the Court notes that that the uncertified uncertified police police accident report submitted Initially, Court notes accident report submitted by Suffolk Suffolk County County is not in admissible fonn and will will not be considered motion (see CPLR CPLR 4518 4518 admissible form considered in the determination determination of of the motion Blackman,_ AD3d _,2020 _, 2020 NY NY Slip Op 05090 Huang v [a]; Yassin Yass;n v Blackman, _ AD3d 05090 [2d Dept Dept 2020]; 2020]; Han Hao Huang "John Doe", 169 AD3d 94 NYS3d NYS3d 572 [2d Dept Dept 2019]; 2019]; Adobea Adobea v Junel, June/, 114 AD3d AD3d 818, 980 AD3d 1014, 1014,94 NYS2d 564 [2d Dept Dept 2014]). NYS2d 2014]). Plaintiff testified at both both a General Municipal Law Law§S 50-h hearing Plaintifftestified General Municipal hearing and at a deposition, deposition, and her testimony was essentially Plaintiff testified :30 p.m. p.m. on April April 19, testimony essentially the same. same. Plaintiff testified that at approximately approximately 11 11:30 2017, vehicle eastbound North Country Road in Mount Mount Sinai, New York. 2017, she was operating operating her vehicle eastbound on North Country Road Sinai, New Plaintiff testified testified that were wet wet from earlier traffic conditions were light, and that that Plaintiff that the roads roads were earlier rain, that that the traffic conditions were the street illuminated by street lights. She testified testified that that she was was driving street was illuminated street lights. driving cautiously cautiously due to the wet roads, was driving miles per per hour. hour. She testified testified that that she was was roads, and that that she was driving at approximately approximately 25 to 35 miles approaching intersection of of Mount Mount Sinai-Coram Road, and that that the traffic traffic light light that that was approaching the intersection Sinai-Coram Road, was governing governing was steady green. Plaintiff Plaintiff testified that as she was was in the intersection, intersection, her vehicle vehicle her direction direction of of travel travel was steady green. testified that was struck police vehicle vehicle that traveling southbound Mount Sinai-Coram Sinai-Coram Road. struck by a SCPD SCPD police that was traveling southbound on Mount Road. She testified that she did not see the SCPD vehicle, or its illuminated illuminated emergency emergency lights, lights, until until a moment testified that SCPD vehicle, moment before the impact, impact, and that that she was was unable unable to avoid avoid the collision. before collision. Eric Dorfman 2017, he was working officer for the SCPD SCPD Dorfman testified testified that that on April April 19, 2017, working as a police police officer and that he was on patrol patrol in Mount Mount Sinai for the 9 p.m. to 7 a.m. tour. He testified testified that that the roads that roads that evening were from an earlier earlier rain, and that that the traffic conditions were Officer Dorfman evening were wet wet from traffic conditions were very very light. Officer Dorfman testified prior to the accident, received a call from dispatch regarding a car accident which a testified that that prior accident, he received dispatch regarding accident in which had struck struck a utility utility pole, and that were unknown injuries. Officer Officer Dorfman Dorfman could could not recall car had pole, and that there there were unknown injuries. recall where this accident allegedly was located. He testified that he illuminated his emergency lights, where this accident allegedly was located. testified that illuminated his emergency lights, subsequently sounded sounded his emergency emergency siren, siren, and and proceeded accident scene. scene. He testified testified that that he was subsequently proceeded to the accident was traveling southbound southbound on Mount Mount Sinai-Coram Sinai-Coram Road Road at approximately approximately 25 miles miles per per hour. hour. He further further traveling testified that that as he approached approached the the intersection intersection with with North Country Road, Road, he slowed slowed his vehicle vehicle to 10 to testified North Country miles per hour so that that he could could "make "make safe safe passage through the intersection." intersection." He testified testified that that the 15 miles per hour passage through traffic signal governing governing his lane lane of of travel travel was was a steady steady red. He also also testified testified that that the configuration configuration of of the traffic intersection, along along with with the the rise rise and and fall of of the the elevation elevation of of North Country Road, Road, resulted resulted in him him not intersection, North Country observe a car, car, coming coming from from the the west, west, while while it was was "far "far away." away." Officer Officer Dorfman Dorfman testified testified being able to observe into the the intersection, intersection, he observed observed plaintiffs approaching over over the that was he began began to proceed proceed into plaintiff's vehicle vehicle approaching [* 2] 2 of 4 FILED: SUFFOLK COUNTY CLERK 10/08/2020 11:27 AM NYSCEF DOC. NO. 32 INDEX NO. 609419/2018 RECEIVED NYSCEF: 10/08/2020 Robinson Robinson v Suffolk Suffolk County County Index No. 609419/2018 609419/2018 Index Page Page 3 hill crest crest "at "at a high high rate rate of of speed" speed" approximately approximately two two to four seconds seconds before before the the collision. collision. He testified testified that plaintiff's speed per hour, based on his "experience personal that he estimated estimated plaintiffs speed to be 50 miles miles per hour, based "experience in personal observation observation of of the vehicle." vehicle." He testified testified that that he attempted attempted to avoid avoid the the collision collision by accelerating accelerating through through the intersection intersection and attempting attempting to swerve. swerve. Drivers Drivers of of emergency emergency vehicles vehicles have have a primary obligation to respond respond quickly quickly to preserve primary obligation preserve life and Kerr, 84 NY2d NY2d 494, NYS2d 297 [1994]). property property and to enforce enforce criminal criminal laws laws (Saarinen (Saarinen v Kerr, 494, 602 NYS2d [1994]). Vehicle Vehicle and Traffic Traffic Law Law § 9 1104 1104 provides provides that that a person person operating operating an "authorized "authorized emergency emergency vehicle" vehicle" has has the qualified qualified privilege privilege to disregard disregard certain certain traffic traffic laws laws during during an emergency emergency operation operation (see Vehicle Vehicle and Traffic Law§ Law 9 1104 [b] [l]-[4]; [1]-[4]; Criscione Criscione v City of of New York, 97 NY2d [2001]; New York, NY2d 152, 736 NYS2d NYS2d 656 [2001]; Traffic Szczerbiak v Pilat, Pilat, 90 NY2d NY2d 553, 664 NYS2d NYS2d 252 [1997]; Saarinen v Kerr, Kerr, supra; supra; Carallo Martino, Szczerbiak [1997]; Saarinen Carallo v Martino, 58 AD3d NYS2d 102 [2d Dept Mouzakes v County Suffolk, 94 AD3d AD3d 792, 873 NYS2d Dept 2009]; 2009]; Mouzakes County of of Suffolk, AD3d 829, 941 NYS2d Dept 2012]). 2012]). Vehicle Vehicle and Traffic Traffic Law§ Law 9 1104 (b) (2) states states "[t]he "[t]he driver driver of of an NYS2d 850 [2d Dept authorized authorized vehicle vehicle may may ... ... [p [p]roceed past a steady steady red signal signal ... ... but but only only after after slowing slowing down down as may be ]roceed past necessary necessary for safe operation." operation." However, However, the the driver driver of of an emergency emergency vehicle vehicle is not not relieved relieved of of his or her her with due regard regard for the safety safety of of others others and will will not not be protected when he or she recklessly recklessly protected when duty to drive with disregards disregards the safety safety of of others others (see Mouzakes County of of Suffolk, Mouzakes v County Suffolk, supra). supra). The manner manner in which which a police officer operates operates his or her her vehicle vehicle in an emergency emergency situation situation "may "may police officer not form the basis basis for civil civil liability liability to an injured injured third third party party unless unless the officer officer acted acted in reckless reckless disregard disregard safety of of others" others" (Puntarich (Puntarich v County County of of Suffolk, AD3d 785, 785, 786, 786, 850 NYS2d Dept Suffolk, 47 AD3d NYS2d 182 [2d Dept for the safety Alexander v City New York, NYS3d 688, 2019 NY Slip 2008]; see Alexander City of of New York, 107 NYS3d 2019 NY Slip Op 07042 07042 [2d Dept Dept 2019]; 2019]; McGough v City Long Beach, Beach, 174 AD3d NYS3d 456 [2d Dept McGough City of of Long AD3d 698, 698, 102 NYS3d Dept 2019]). 2019]). The The "reckless "reckless disregard" standard standard requires requires proof proof that that the driver driver "has "has intentionally intentionally done done an act of of an unreasonable unreasonable disregard" character in disregard disregard of of a known known or or obvious obvious risk risk that that was was so great great as to make make it highly highly probable probable that that character harm New harm would would follow follow and and has done done so with with conscious conscious indifference indifference to the the outcome" outcome" (Frezzell (Frezzell v City City of of New York, 24 NY3d NY3d 213, NYS2d 367 [2014]; McGough v City Long Beach, Beach, supra; supra; 213, 217, 217, 997 NYS2d [2014]; see McGough City of of Long Notorangelo v State, 240 240 AD2d AD2d 716,659 716, 659 NYS2d Dept 1997]; 1997]; see also Saarinen Notorangelo vState, NYS2d 312 [2d Dept see also Saarinen v Kerr, Kerr, supra). supra). To find reckless judgment lapse" reckless disregard disregard "requires "requires a showing showing of of more more than than a momentary momentary judgment lapse" (Saarinen (Saarinen v Kerr, supra supra at 502). Further, Kerr, Further, the the reckless reckless disregard disregard standard standard of of care care in Vehicle Vehicle and Traffic Traffic Law Law § 9 1104 e) only applies applies when when a driver driver of of an authorized authorized emergency emergency vehicle vehicle involved involved in an emergency emergency operation operation ((e) engages in the specific specific conduct conduct exempted exempted from the rules rules of of the road road by Vehicle Vehicle and and Traffic Traffic Law Law § 9 1104 engages Cioffi v S.M. Foods, Inc., AD3d 1006, 116 NYS3d 306 [2d Dept Dept 2019]; 2019]; Thomas Thomas v City of of S.M. Foods, Inc., 178 AD3d NYS3d 306 (b) (see Cioffi New York, NYS3d 318 [2d Dept New York, 172 AD3d AD3d 1132, 1132, 100 NYS3d Dept 2019]). 2019]). Any Any other other injury-causing injury-causing conduct conduct of of driver is governed governed by the the principles principles of of ordinary ordinary negligence negligence (Kabir (Kabir v County County of of Monroe, such a driver Monroe, 16 NY3d NY3d see Thomas New York, supra). While 217,920 NYS2d 268 [2011]; 217,920 NYS2d [2011]; see Thomas v City City of of New York, supra). While the the reckless reckless disregard disregard standard standard of of care care under under Vehicle Vehicle and and Traffic Traffic Law Law § 9 1104 "shields "shields municipalities municipalities from from simple simple negligence negligence and mere judgment, it also protects innocent public by expressly mere errors errors in judgment, also protects innocent victims victims and and the the general general public expressly not not relieving emergency emergency operators operators and their their municipal municipal employers employers of of all reasonable reasonable care" care" ((Campbell City of of Campbell v City relieving Elmira, 505, 513, 620 NYS2d [1994]; see Elmira, 84 NY2d NY2d 505,513,620 NYS2d 302 [1994]; see Szczerbiak Szczerbiak v Pilat; Pilat; supra). supra). Suffolk County County has has failed failed to eliminate eliminate all triable triable issues issues of of fact. Suffolk Suffolk County County has has submitted submitted Suffolk evidence police vehicle evidence that that Officer Officer Dorfman Dorfman was was operating operating a marked marked police vehicle and and that that he slowed slowed his vehicle, vehicle, looking looking before before entering entering the the subject subject intersection intersection where where his lane lane of of travel travel was was governed governed by a red light light (see [* 3] 3 of 4 INDEX NO. 609419/2018 FILED: SUFFOLK COUNTY CLERK 10/08/2020 11:27 AM NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 10/08/2020 Robinson v Suffolk Suffolk County County Robinson Index Index No. 609419/2018 609419/2018 · Page 4 Page4 New Vehicle and Traffic Traffic Law Law §S 1104 1104 [b] (2); Vehicle Vehicle and Traffic Traffic Law Law §S 114-b; 114-b; Criscione Criscione v City City of of New Vehicle supra; Beach, supra; Long Beach, supra;McGough v City Kerr, supra;McGough Szczerbiak v Pilat, Saarinen v Kerr, City of of Long supra; Saarinen Pilat, supra; supra; Szczerbiak York, supra; Mouzakes County of of Suffolk, Suffolk, supra). However, Officer Officer Dorfman Dorfman also testified testified that, that, at the subject subject supra). However, Mouzakes v County intersection and from his vantage car coming coming from from a distance distance away away not be able to see a car would not point, he would vantage point, intersection the intersection. change in elevation elevation of of North Country Road approaches the intersection. Suffolk Suffolk County County Road as it approaches North Country due to the change submits the testimony testimony of of plaintiff, plaintiff, who who testified testified that that she did not not observe observe Officer Officer Dorfman' Dorfman's s vehicle vehicle also submits before the collision, collision, and and that that the configuration configuration of of the intersection intersection made made it difficult difficult to see oncoming oncoming before traffic. traffic. Therefore, Suffolk Suffolk County County has has failed failed to eliminate eliminate questions questions of of fact fact with with respect respect to whether whether Therefore, Frezzell Officer Dorfman's Dorfman's actions actions constituted constituted reckless reckless disregard disregard for the safety safety of of others others (see Frezzell v City of of Officer Starkman v City New York, supra; Cordero v Nunez, Dept 2020]; 2020]; Starkman NYS3d 593 [2d Dept AD3d 635, 113 NYS3d Nunez, 179 AD3d supra; Cordero New York, Hosp., Prospect Hosp., Alvarez v Prospect see also Alvarez of Long 1076, 965 NYS2d Dept 2013]; 2013]; see NYS2d 609 [2d Dept AD3d 1076, Beach, 106 AD3d Long Beach, of NY2d 851,487 Med. Ctr., 64 NY2d New York 320,508 NYS2d [1986]; Winegrad Winegrad v New York Univ. Med. 851, 487 NYS2d 923 [1986]; NY2d 320,508 68 NY2d . [1985]). 316 NYS2d NYS2d [1985]). Accordingly, the motion motion by defendants defendants County County of of Suffolk, Suffolk, Suffolk Suffolk County County Police Police Department, Department, Accordingly, and Eric Dorfman Dorfman for summary summary judgment dismissing the complaint complaint as asserted asserted against against them them is denied. denied. judgment dismissing ~d OCT O5 2020 052020 Dated: - - - Dated: ---FINAL DISPOSITION DISPOSITION FINAL [* 4] PH SANTORELLI PH A. SANTORELLI l.S.C. J.S.C. X 4 of 4 NON-FINAL DISPOSITION DISPOSITION NON-FINAL

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