Plunkett v. Emergency Medical Service of New York City

• Court: New York Supreme Court
• Writing for the Court: GEORGE FRIEDMAN
• Citation: Plunkett v. Emergency Medical Service of New York City, 627 N.Y.S.2d 237, 165 Misc.2d 418 (N.Y. Sup. Ct. 1995)
• Decision Date: 06 February 1995
• Docket Number: TT-10
• Parties: Donald PLUNKETT, Jacqueline Lavon Peaco as Administratrix of the Estate of Gary L. Peaco, Individually and as Natural Guardian of the Infants, Sophia Peaco and Natasha Peaco, Plaintiffs, v. EMERGENCY MEDICAL SERVICE OF NEW YORK CITY and the New York City Health and Hospital Corporation, Defendants. NEW YORK CITY HEALTH AND HOSPITAL CORPORATION, Third-Party Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Third-Party Defendant

Page 237

627 N.Y.S.2d 237

165 Misc.2d 418

Donald PLUNKETT, Jacqueline Lavon Peaco as Administratrix of

the Estate of Gary L. Peaco, Individually and as

Natural Guardian of the Infants, Sophia

Peaco and Natasha Peaco, Plaintiffs, v. EMERGENCY MEDICAL SERVICE OF NEW YORK CITY and the New York

City Health and Hospital Corporation, Defendants.

NEW YORK CITY HEALTH AND HOSPITAL CORPORATION, Third-Party Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Third-Party Defendant.

Supreme Court, Bronx County Part TT-10.

Feb. 6, 1995.

Newman, O'Malley & Epstein, New York City, for plaintiff Donald Plunkett.

Dienst & Serrins, New York City, for Jacqueline Lavon Peaco, individually, and as Administratrix of the Estate of Gary L. Peaco, and as Guardian of the infants, Sophia and Natasha Peaco.

Molod & Berkowitz, New York City, for third-party defendant NYCHA.

Paul Crotty, Corp. Counsel, New York City, for defendant and third-party plaintiff City of New York.

GEORGE FRIEDMAN, Justice.

Plaintiffs are the Estate of a deceased Housing Authority police officer and another officer who survived a collision between a marked Housing Authority Patrol car and a New York City Emergency Medical Services (EMS) ambulance near Tremont Avenue in Bronx County on June 16, 1988. This action was tried before the late Justice Modesto and a jury commencing on January 3, 1994. At trial, in order to satisfy the mandates of General Municipal Law § 205-e, plaintiffs sought to show that the EMS ambulance was being driven in violation of EMSregulations ¹ in that, among other things, it was being operated as an emergency vehicle without having been authorized to do so.

After lengthy and extensive testimony, the matter was submitted to the jury, which was charged to return a special verdict. The Court's charge and the verdict sheet required the jury to find that any regulatory violation of the EMS Operating Guide was a "proximate cause " of Plaintiffs' injuries in order for the Defendants to be found liable. The Court, in the charge as a whole, defined "proximate cause" as having two distinct and separate meanings. The Court stated, in pertinent part, that:

They also have to prove--well, this is where we start getting complicated. Plunkett and Peaco have to prove violation under 205 of the General Municipal Law. If they do that, they also have to prove proximate cause against EMS, and proximate cause under that particular statute is defined differently than it is under the definition which I gave you for negligence generally under the second--under the third party claim.

Under the General Municipal Law claim, proximate cause means only a practical connection between the injury sustained and the violation of the statute or regulation. So it is not a substantial connection. It is just a reasonable or practical connection under the General Municipal Law claim.

So the definition, and again, if you have any confusion about that, because you're only hearing it for the first time now, the definition, both the plaintiffs Plunkett and Peaco and the EMS have to prove proximate cause on their case in order to prevail.

The jury's verdict sheet required the jury to respond whether the acts of Defendants were the "proximate cause" of the accident; the words "practical connection" or similar words do not appear on the verdict sheet.

The jury returned a verdict finding that the ambulance had negligently failed to comply with the provisions of the EMS Operating Guide, but that this regulatory violation was not a proximate cause of the Plaintiffs' injuries.

Plaintiffs now move to set aside the verdict pursuant to CPLR 4404. Plaintiffs' sole argument is that the Court's charge and verdict sheet were erroneous in that the Court employed the language "proximate cause" with regard to the standard under General Municipal Law § 205-e.

Justice Modesto died after the submission of the motion to set aside the verdict. By letter to his Law Clerk dated October 8, "1995" (sic--the letter was undisputedly drafted in 1994), the late Justice directed, "Give [the Hon. Burton B.] Roberts the Plunkett after trial motion papers so that he can have someone in the pool decide it. The motion should be denied for the reasons stated in the Defendant's papers." A memorandum decision was prepared by the Justice's Law Clerk in accordance with the late Justice's instructions and delivered to the home of the Justice. This draft memorandum, as well as a second copy, was delivered to the Justice's home. Both were returned to the Justice's Chambers, unsigned, for reasons which cannot now be discovered.

The motion has now been referred to me for determination as the successor Justice presiding at Trial Term, Part 10. As a threshold matter, it must be determined whether I may execute an order denying the motion as a ministerial act carrying out Justice Modesto's intent pursuant to CPLR 9002.

CPLR 9002 provides, in pertinent part that after the death of a Judge "following his verdict, report, decision or determination of a motion ... any other judge of the same court may, on the application of a party, give effect to such verdict, report, decision or determination and make and sign an appropriate order or judgment based thereon...." It has been held that this section authorizes "merely ministerial acts" which may be necessary to carry into effect matters already determined in judicial proceedings (8 Weinstein-Korn-Miller New York Civil Practice, § 9002.01).

The cases are not particularly enlightening as to the nature of the prior determination which will permit further proceedings to be entered thereon pursuant to CPLR 9002. It has been held in dicta that an unsigned memorandum decision is insufficient (Schammel v. Schammel, 161 A.D.2d 407, 555 N.Y.S.2d 336, motion dismissed, 76 N.Y.2d 844, 560 N.Y.S.2d 127, 559 N.E.2d 1286), although the contrary result has been reached where the parties relied on the first unsigned memorandum in moving for reconsideration, and where the Clerk's minute book reflected that a second determination on reargument adhering to the first had been issued (Rosenshein v. Guillen, 92 Misc.2d 217, 400 N.Y.S.2d 33).

It has been held that in a non-jury case an oral decision dictated on the record would support the entry of judgment following the death of the trial justice (Lindt v. Guggenheim Foundation, 24 A.D.2d 944, 265 N.Y.S.2d 144, rev'd. on other grounds, 25 N.Y.2d 357, 306 N.Y.S.2d 436, 254 N.E.2d 746), as would a signed memorandum decision which recited "settle order" (Matter of New York State Labor Relations Board v. America Marble Co., Inc., 13 Misc.2d 877, 178 N.Y.S.2d 109, affirmed, 7 A.D.2d 907, 183 N.Y.S.2d 541; see also, Pivnick v. Fraley Realty Corp., 157 A.D.2d 466, 549 N.Y.S.2d 394 [proper for justice substituted after death of another justice to resettle judgment to conform to earlier justice's decision].

On the other end of the spectrum, a letter from a collection officer is not evidence that a retired Family Court Judge had issued an order suspending child support obligations (Matter of Ursula Holm v. Holm, 186 A.D.2d 1084, 588 N.Y.S.2d 501). Similarly, the affidavit of a former justice's law clerk that a certain justice had made a final determination was not sufficient to bind a successor justice (Nowak v. Sherman, 198 A.D.2d 842, 605 N.Y.S.2d 684, reargument denied, 1994 WL 131336).

The cases cited above generally turn on the reliability of the evidence that the deceased or incapacitated judge had reached a final determination. As noted above, even unsigned determinations have been given effect where the facts warrant that result (Rosenshein, supra). Here, the Court's note to its court attorney was signed, and I...