Wadler v. City of New York, 2008 NY Slip Op 30572(U) (N.Y. Sup. Ct. 2/28/2008)

• Decision Date: 28 February 2008
• Docket Number: Mot. Seq. No. :001.,0116207/2006.
• Citation: 2008 NY Slip Op 30572
• Parties: DAVID WADLER, Plaintiff, v. THE CITY OF NEW YORK and THE NEW YORK CITY POLICE DEPARTMENT Defendants.
• Court: New York Supreme Court

Page 1

2008 NY Slip Op 30572(U)

DAVID WADLER, Plaintiff, v. THE CITY OF NEW YORK and THE NEW YORK CITY POLICE DEPARTMENT Defendants.

0116207/2006.

Mot. Seq. No. :001.

Supreme Court of State of New York, New York County.

February 28, 2008.

EILEEN A. RAKOWER, Judge:

Plaintiff was an active New York City Police Officer when, on October 31, 2005, he was injured at a police checkpoint at Avenue of the Finest and Pearl Street in the County and State of New York. Specifically, he was driving a police department vehicle and was permissibly traversing the police barricade, which had been retracted into the ground for him to pass, when the barrier operation was reactivated prematurely. It hit the under portion of the vehicle, lifting the vehicle off the ground. Plaintiff, as a result of this incident, alleges neck and back injuries.

Plaintiff brings this motion for partial summary judgment on the issue of liability. City opposes the motion, and cross moves to dismiss plaintiff's cause of action on the grounds that plaintiff did not suffer a grave injury as described by the Worker's Compensation Law, and that plaintiff is precluded from recovering damages based on the "firefighter's rule." Plaintiff opposes the cross motion.

Plaintiff, in support of its motion, submits the following: the police accident report and accident report for the police department vehicle involved and line-of-duty injury report; the notice of claim; portions of plaintiff's 50-h hearing transcript; the pleadings; discovery demands and case scheduling orders; and defendant's admission that an officer assigned to the barrier operation accidentally activated the barrier contained within a police accident report provided to plaintiff through discovery.

City, in support of its cross motion and in opposition to plaintiff's motion provides: the notice of claim, plaintiff's verified bill of particulars; and a complete copy of plaintiff's 50-h hearing transcript.

Plaintiff, by way of reply, provides his own additional sworn affidavit, dated February 4, 2008.

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255 [1970]). (Edison Stone Corp. v. 42nd Street Development Corp., 145 A.D.2d 249, 251-252 [1st Dept. 1989]).

Plaintiff establishes that the police operated barricade was activated exclusively by defendant, and that as a result, he was injured. Normally, upon such a showing, it would be incumbent upon defendant to show by proof in admissible form that issues of fact exist as to whether defendants are liable for the instant accident. Here, however, City argues alternatively that plaintiff is also negligent, barring summary judgment, or that plaintiff is barred from bringing his negligence claim.

First, defendants state that, although this accident was caused by the operation of the security barrier, plaintiff may have contributed to the cause of the accident. Defendants point out that there was no mechanical or vehicular defect alleged, and thus the actions of the parties themselves are the proximate cause of the accident. However, there is no evidence submitted which raises an issue of fact regarding comparative negligence. It is not alleged that plaintiff stopped the vehicle inappropriately while over the barrier, or that he communicated with the operator of the barrier in a way so as to encourage the barrier's premature activation. To the contrary, reports consistently fault the barrier operator with its premature activation.

Secondly, defendants argue that plaintiff fails to meet his burden of showing a grave injury as required by Workers' Compensation Law § 1 I . However, plaintiff points out that the New York State Insurance Fund's statement excludes police officers from the Worker's Compensation Law of New York. Therefore, the inquiry into whether plaintiff's injuries are "grave" as defined by the Workers' Compensation Law is moot.

Finally, defendants assert that plaintiff is precluded from bringing these claims by the "firefighter's rule," which states:

Where some act taken in furtherance of a specific police or firefighter function exposes the plaintiff to a heightened risk of sustaining the particular injury, he or she may not recover damages for common law negligence. (Zanghi v. Niagara Frontier Transp. Comm'n, 85 NY2d 423[1995]).

Plaintiff...