Gaudio v. City of N.Y.

• Decision Date: 30 December 2020
• Docket Number: 2019-01285,Index No. 1472/13
• Citation: 140 N.Y.S.3d 102,189 A.D.3d 1546
• Parties: Julia GAUDIO, etc., appellant, v. CITY OF NEW YORK, et al., respondents.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1546

140 N.Y.S.3d 102

Julia GAUDIO, etc., appellant,

v.CITY OF NEW YORK, et al., respondents.

2019-01285

Index No. 1472/13

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

Argued—March 26, 2020

December 30, 2020

Rubenstein & Rynecki, Brooklyn, N.Y. (Harper A. Smith of counsel), for appellant.

James E. Johnson, Corporation Counsel, New York, N.Y. (Deborah A. Brenner and Elina Druker of counsel), for respondents City of New York and New York City Police Department.

Tobias & Kuhn, New York, N.Y. (Shahab Katirachi of counsel), for respondents Menachem Trietel and Rachel Abraham.

CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Katherine Levine, J.), dated December 13, 2018. The order, insofar as appealed from, granted that branch of the motion of the defendants Menachem Trietel and Rachel Abraham which was for summary judgment dismissing the complaint insofar as asserted against them and granted that branch of the separate motion of the defendants City of New York and New York City Police Department which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Menachem Trietel and Rachel Abraham which was for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff payable by the defendants Menachem Treitel and Rachel Abraham, and one bill of costs to the defendants City of New York and New York City Police Department payable by the plaintiff.

On December 5, 2011, the plaintiff's decedent, Jean–Claude Christopher Martial, was operating a motorcycle when it collided with a vehicle owned by the defendant Menachem Trietel and operated by the defendant Rachel Abraham at the intersection of Coney Island Avenue and Avenue J in Brooklyn. Abraham, who was operating her vehicle in a northerly direction on Coney Island Avenue, made a left turn onto Avenue J. Her vehicle was traveling in a westerly direction on Avenue J, within the intersection, when the rear passenger side of her vehicle made contact with Martial's motorcycle, which was traveling in a southerly direction on Coney Island Avenue. At the time of the accident, Martial was speeding to flee from an unmarked police vehicle operated by Police Officer Mohamed Eltony.

The plaintiff subsequently commenced this action, inter alia, to recover damages for wrongful death. Trietel and Abraham moved, among other things, for summary judgment dismissing the complaint insofar as asserted against them. The defendants City of New York and the New York City Police Department (hereinafter together the City defendants) separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted both motions. The plaintiff appeals.

We agree with the Supreme Court's determination to grant that branch of the City defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them. "The manner in which an authorized emergency vehicle is operated in an emergency situation may not form the basis for civil liability unless the driver acted in reckless disregard for the safety of others" ( Woodard v. Thomas, 77 A.D.3d 738, 739, 913 N.Y.S.2d 103 ; see Vehicle and Traffic Law § 1104[e] ; Jobson v. SM Livery, Inc., 175 A.D.3d 1510, 1511, 109 N.Y.S.3d 376 ; Foster v. Suffolk County Police Dept., 137 A.D.3d 855, 856, 26 N.Y.S.3d 781 ). "The ‘[e]mergency operation’ of a police vehicle includes ‘pursuing an actual or suspected violator of the law’ " ( Gonzalez v. Zavala, 88 A.D.3d 946, 947, 931 N.Y.S.2d 396, quoting Vehicle and Traffic Law § 114–b ). "The reckless disregard standard requires proof that the officer intentionally committed 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" ( Rios v. City of New York, 144 A.D.3d 1011, 1011–1012, 42 N.Y.S.3d 54 ; see Campbell v. City of Elmira, 84 N.Y.2d 505, 510, 620 N.Y.S.2d 302, 644 N.E.2d 993 ; Saarinen v. Kerr, 84 N.Y.2d 494, 501, 620 N.Y.S.2d 297, 644 N.E.2d 988 ; Quintana v. Wallace, 95 A.D.3d 1287, 945 N.Y.S.2d 366 ; Ferrara v. Village of Chester, 57 A.D.3d 719, 869 N.Y.S.2d 600 ).

Here, the City defendants established, prima facie, that Eltony did not operate his vehicle in reckless disregard for the safety of others in his pursuit of Martial, who was driving over the speed limit (see Gonzalez v. Zavala, 88 A.D.3d at 948, 931 N.Y.S.2d 396 ; Alexander v. City of New York, 176 A.D.3d 659, 107 N.Y.S.3d 688 ; Nurse v. City of New York, 56 A.D.3d 442, 867 N.Y.S.2d 486 ; Dorsey v. City of Poughkeepsie, 275 A.D.2d 386, 712 N.Y.S.2d 604 ; Young v. Village of Lynbrook, 234 A.D.2d 455, 650 N.Y.S.2d 804 ; Lorber v. Town of Hamburg, 225 A.D.2d 1062, 639 N.Y.S.2d 607 ). In any event, the City defendants established, prima facie, that Eltony's conduct in initiating the pursuit of Martial was not a proximate cause of the accident (see Alexander v. City of New York, 176 A.D.3d at 660, 107 N.Y.S.3d 688 ; Nurse v. City of New York, 56 A.D.3d at 443, 867 N.Y.S.2d 486 ; see generally Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666 ; Aqeel v. Tony Casale, Inc., 44 A.D.3d 572, 573, 845 N.Y.S.2d 8 ; Fappiano v. City of New York, 292 A.D.2d 566, 567, 739 N.Y.S.2d 436 ). In opposition, the plaintiff failed to raise a triable issue of fact.

However, we disagree with the Supreme Court's determination to grant that branch of Trietel and Abraham's motion which was for summary judgment dismissing the complaint insofar as asserted against them. " ‘A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident’ " ( Gobin v. Delgado, 142 A.D.3d 1134, 1135, 38 N.Y.S.3d 63, quoting Boulos v. Lerner–Harrington, 124 A.D.3d 709, 709, 2 N.Y.S.3d 526 ; see Estate of Cook v. Gomez, 138 A.D.3d 675, 30 N.Y.S.3d 148 ; Baulete v. L & N Car Serv., Inc., 134 A.D.3d 753, 22 N.Y.S.3d 86 ). "There can be more than one proximate cause of an accident" ( Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604 ), and " ‘[g]enerally, it is for the trier of fact to determine the issue of proximate cause’ " (Estate of Cook v. Gomez, 138 A.D.3d at 677, 30 N.Y.S.3d 148, quoting Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d 889, 889, 922 N.Y.S.2d 550 ).

" Vehicle and Traffic Law § 1141 provides that the ‘driver of a vehicle intending to turn to the left within an intersection ... shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard’ " ( Katikireddy v. Espinal, 137 A.D.3d 866, 867, 26 N.Y.S.3d 775 ; see Attl v. Spetler, 137 A.D.3d 1176, 28 N.Y.S.3d 699 ; Foley v. Santucci, 135 A.D.3d 813, ...