Flynn v. City of New York

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: SULLIVAN
• Citation: Flynn v. City of New York, 693 N.Y.S.2d 569 (N.Y. App. Div. 1999)
• Decision Date: 22 July 1999
• Parties: Kevin FLYNN, et al., Plaintiffs-Respondents, and Steven Marron, Plaintiff, v. The CITY OF NEW YORK, Defendant-Appellant, and Mary Shero, et al., Defendants.

Page 569

693 N.Y.S.2d 569

Kevin FLYNN, et al., Plaintiffs-Respondents and Steven Marron, Plaintiff, v. The CITY OF NEW YORK, Defendant-Appellant and Mary Shero, et al., Defendants.

Supreme Court, Appellate Division, First Department, New York.

July 22, 1999.

Jane L. Gordon, of counsel (Barry P. Schwartz, on the brief, Michael D. Hess, Corporation Counsel of the City of New York, attorney) for defendant-appellant,

Patrick M. Connors, of counsel (Malachy J. Duffy, P.C., and Hancock & Estabrook, L.L.P., attorneys) for plaintiff-respondent Kevin Flynn.

BETTY WEINBERG ELLERIN, P.J., JOSEPH P. SULLIVAN, RICHARD W. WALLACH and ISRAEL RUBIN, JJ.

SULLIVAN, J.

Plaintiffs-respondents, both of whom were police officers at the time, suffered line-of-duty injuries during a riot in Tompkins Square Park, in Manhattan, that erupted on May 1, 1990 in the final hours of a four-day festival and concert sponsored by the Tompkins Square Cultural Arts Committee. Although intermittently promoted by a group with a radical political bent, calling itself "Resist to Exist", the concert and festival had taken place without incident until the events described herein. The City permits for the event were to expire at 9:00 p.m. that evening.

Plaintiffs, who regularly patrolled the park and had substantial crowd control experience, ¹ were on duty at the concert along with Deputy Inspector Michael Julian, the commanding officer of their precinct and the officer in charge, and Sergeant Marron, specially selected because he enjoyed good relations with the community.

At about 6:00 p.m., when the crowd had grown to about 200, approximately 75 demonstrators left the park and marched through the surrounding streets and attempted to recruit additional demonstrators, temporarily disrupting traffic. No arrests were made. The group returned to the park in about an hour. At about the same time, someone took the stage microphone and began exhorting the crowd to resist the police. One Tolia, convicted of inciting to riot for his involvement in the affair, exhorted the crowd to "[b]e prepared to break the law tonight", "[b]e prepared to resist tonight" and "[b]e prepared to fight tonight." Several other speakers, as well, attempted to rally the crowd to take action against the police. In response, Inspector Julian requested back-up supervisory and patrol personnel, who arrived at 8:30 p.m., 30 minutes before the City permits were to expire.

After the back-up officers arrived, a Department of Parks supervisor asked for a police escort to allow him to shut off the electrical power at the scheduled 9 p.m. conclusion of the event. The event's organizers had earlier petitioned to extend the permit until 10 p.m., but had been refused. Inspector Julian, with Sergeant Marron and plaintiff Hernandez, accompanied three Department of Parks employees to the stage, where the power switch was located. Eight additional officers, including plaintiff Flynn, were close behind. Inspector Julian had ordered plaintiffs and the other officers not to bring any "hats [or] bats", despite the availability in a police van a few feet from the stage of helmets and batons and other protective gear traditionally used by police in riot situations.

At about that time, a crowd began to gather by the stairs leading to the stage, where the police officers had gathered as a speaker urged them to "stop the police." The officers were ordered onto the stage; some of the crowd began to follow them. As several officers, including Inspector Julian, attempted to arrest the speaker, a struggle ensued and the crowd began to riot, throwing bottles at the police officers on stage, one of which hit Officer Flynn, knocking him unconscious, as he attempted to handcuff one of the rioters. Officer Hernandez and Sergeant Marron were also injured. Officer Flynn, one of the most seriously injured in the melee, was eventually granted an accident disability retirement.

Despite a second disruption, order was restored, although the disturbance continued for most of the evening. In all, 275 police officers, 11 lieutenants and 35 sergeants responded, necessitating the establishment of a temporary command post. According to Inspector Julian's official report of the incident, the police officers had successfully used a low-key strategy, employing "non-confrontational dialogue with officers known to park denizens as professional and tolerant" in responding to similar prior events in the park. The May 1, 1990 incident was, however, a stark departure from past experiences, leading Inspector Julian to conclude that the May 1 melee was premeditated.

Officers Flynn and Hernandez, along with Sergeant Marron, commenced this personal injury action against the City and others, alleging, as against the City, a cause of action for common-law negligence only. In a pre-trial deposition Officer Flynn testified that it was a matter of individual discretion within the Police Department whether to wear a helmet. Officer Hernandez thought that the commanding officer makes that determination, although he was unable to point to any official regulation or policy in support of his conclusion. Nor could he remember being ordered not to wear a helmet on the night in question.

After the completion of these depositions, the City, in 1993, moved for summary judgment dismissal of the complaint on the ground that the police officers' claims were barred by the firefighter's rule, enunciated in Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770, and on the further ground that there could be no recovery against the City under common-law negligence for line-of-duty injuries, particularly, where, as here, the injuries were the result of an official exercise of discretion. Neither Flynn or Hernandez nor Sergeant Marron asserted a claim based on Inspector Julian's order not to wear helmets. Instead, in opposing the motion, the plaintiff police officers premised their claim on the Inspector's allegedly belated request for additional back-up. Flynn also argued that additional discovery was required to determine the extent of the advance information available to the Police Department and how that information affected its strategy for handling the event. Supreme Court (Alice Schlesinger, J.) denied the motion, without prejudice, pending the completion of discovery.

In October 1995, five years after the commencement of this action and after he retained separate counsel, Flynn served a bill of particulars, asserting, for the first time, that the City had violated General Municipal Law § 205-e by allegedly failing to follow the "mandates and requirements" of the Police Department's Patrol Guide ² and the Department's "temporary and standard operating procedures." Flynn further asserted that the City violated the "Disorder Manual", as well as the Department's "rules and disorder control management provisions" and "other accepted police procedure." ³ We note at this juncture that this court has held that the assertion of a General Municipal Law § 205-e claim, otherwise time barred, as would be this claim, relates back to the common law negligence claim originally pleaded. (See, Simons v. City of New York, 252 A.D.2d 451, 675 N.Y.S.2d 597.)

In 1997, the City again moved for summary judgment, arguing, as it did originally, that plaintiffs could not premise liability on the acts of a fellow officer where, as here, their injuries resulted from that officer's exercise of discretion; that the defense of the firefighter's rule applied to the common law claims and, in defense of Flynn's unpleaded General Municipal Law § 205-e claim and in reliance on Desmond v. City of New York, 88 N.Y.2d 455, 646 N.Y.S.2d 492, 669 N.E.2d 472, that internal agency manuals could not support such a cause of action because they do not constitute the type of well developed body of law and regulation that are the prerequisite for section 205-e liability. In opposing the motion, Flynn, for the first time, claimed that Inspector Julian ordered him not to use his helmet and baton in violation of the Patrol Guide and the "Disorder Control Management Manual." Hernandez and Sergeant Marron, responding jointly, opposed the motion in an attorney's affirmation citing the City's "negligence in failing to follow proper guidelines for crowd control." Their response made no reference to General Municipal Law § 205-e.

The Supreme Court rejected all of the City's arguments and denied the motion as to both Flynn and Hernandez ⁴, holding that Flynn could assert both a common-law negligence and General Municipal Law § 205-e claim. Specifically, as to the relied upon provisions of the Patrol Guide and training manual, the court held that they met section 205-e's predicate as "well developed bodies of law and regulation which impose clear duties." The court also invited both Flynn and Hernandez to move for leave to amend the complaint, presumably to assert a General Municipal Law § 205-e claim. We reverse.

Pursuant to General Municipal Law § 205-e, police officers or their representatives have the right to maintain an action to recover damages for personal injuries or death resulting from another person's negligence in failing to comply with statutory or regulatory requirements. This section was enacted to ameliorate the harsh effects of the firefighter's rule, applicable to police officers as well (St. Jacques v. New York City, 215 A.D.2d 75, 84, 633 N.Y.S.2d 97, affd. 88 N.Y.2d 920, 646 N.Y.S.2d 787, 669 N.E.2d 1109), which bars recovery against property owners or occupants for their negligence in creating the condition which gave rise to the injury. (Id.; Santangelo v. State of New York, supra 71 N.Y.2d, at 397, 526 N.Y.S.2d 812, 521 N.E.2d 770.)

As the Court of Appeals has noted with respect to the applicability of the firefighter's rule, "[T]he determinative factor [in applying the bar of the firefighter's rule] is whether the injury sustained is...