Opinion
13822/2014
11-18-2019
Argentino CABRERA, Plaintiff, v. CITY OF NEW YORK and Police Officer William Haviland, Defendants.
Attorney for Plaintiff, Greenberg & Stein, P.C., 360 Lexington Avenue, Suite 1501, New York, NY 10017 Attorney for Defendants, Zachary W. Carter, Corporation Counsel of the City of New York, 350 Jay Street, 8th Floor, New York, NY 10007
Attorney for Plaintiff, Greenberg & Stein, P.C., 360 Lexington Avenue, Suite 1501, New York, NY 10017
Attorney for Defendants, Zachary W. Carter, Corporation Counsel of the City of New York, 350 Jay Street, 8th Floor, New York, NY 10007
Katherine A. Levine, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers/Numbered
Defendants' Notice of Motion with Accompanying Affidavits and Exhibits 1
Affirmation in Opposition with Accompanying Affidavits and Exhibits 2
Defendants' Reply Affirmation 3
This case raises the issue of whether the City of New York ("City") is immune from liability when a police patrol dog bites an innocent bystander while the police track and search for a perpetrator of a car-jacking.
On January 3, 2014, a perpetrator car jacked a victim at gunpoint and stole his car, money and cell phone before fleeing. The perpetrator abandoned the car, ran into an auto repair shop, dropped his jacket on the floor, and then left. Deputy Inspector Schiff, the commanding officer of the 106th Precinct, instructed Police Officer Haviland ("PO Haviland" or the "handler") to go with a Belgian Malinois dog named "Bullet" from the police K-9 unit to the location where the perpetrator discarded his jacket in order to gather the perpetrator's scent from the discarded jacket and find him. PO Haviland testified at his EBT that Bullet was trained in patrol, which included tracking and apprehending, holding and biting suspects.
PO Haviland placed a harness on Bullet with a fifteen-foot leash, and they entered the auto repair shop together. Bullet sniffed the jacket and began tracking the scent, which led them into the auto repair shop garage. Plaintiff Argentino Cabrera ("plaintiff" or "Cabrera"), a construction worker who had been renovating the garage bathroom at the time, was in the garage. Plaintiff testified that when the police entered the garage, they asked him whether he had seen the perpetrator and he informed them that the perpetrator had been hiding there but left. Plaintiff further testified Bullet bit him around five minutes after the police entered the garage. This court's review of the video footage reveals that Bullet bit plaintiff on his left knee as he was holding a piece of sheetrock. Although it is not clear that five minutes elapsed before the biting, it is not disputed that at the time of the biting, PO Haviland's leash holding Bullet was extended around 15 feet and Haviland did not see the actual biting.
Plaintiff and PO Haviland offer different versions of Haviland's actions following the bite. Plaintiff claims that PO Haviland did not issue any verbal commands to Bullet to let go or to stop biting plaintiff, and that an unnamed officer just pulled Bullet off. On the other hand, Haviland testified that he put his hands on Bullet's collar and issued the command "Out" and then Bullet let go and was under control.
The City moves for summary judgment dismissing the complaint pursuant to CPLR § 3212 because the decision to use a K-9 unit dog to track the perpetrator was inherently discretionary, and it is therefore immune from liability. In particular, the City argues that the governmental function immunity defense shields the conduct of the police officers from tort liability and that the City cannot be held liable in hindsight for choosing to use Bullet in the investigation.
Plaintiff argues that defendant is not entitled to governmental immunity because such immunity does not extend to situations where a police officer violates acceptable police practice. He further argues that the video of the incident demonstrates that PO Haviland failed to pay proper attention to Bullet or to properly control his movements, including holding him with an exceedingly long leash and giving Bullet too much free rein in an area where non-suspect civilians were present. Thus, there are triable issues of fact as to whether PO Haviland maintained proper control and supervision of the police dog, precluding summary judgment.
The standard of liability to be imposed upon the City depends on the nature of its act or omission which allegedly caused the injury. Such acts or omissions are characterized as either governmental, or proprietary/ministerial functions. Acts "undertaken for the protection and safety of the public pursuant to the general police powers" are considered "governmental functions." Turturro v. City of New York , 28 NY3d 469, 479 (2016) ; Applewhite v. Accuhealth, Inc. , 21 NY3d 420, 425 (2013) ; Heeran v. Long Is. Power Auth. (LIPA) , 141 AD3d 561, 563 (2d Dept. 2016). See , Santaiti v. Town of Ramapo , 162 AD3d 921 (2d Dept. 2018) (town's discretionary decision to allow a former police officer to retain his handgun without a license after being accused of assaulting his wife and threatening her life, involved a government function); Preaster v. City of Syracuse , 160 AD3d 1423 (4th Dept. 2018) (repairing fire hydrants for the public good is a government function); Santoro v. City of New York , 17 AD3d 563 (2d Dept. 2005) (alleged failure to properly direct traffic at scene of accident was a governmental function). An action is "ministerial" when it "involves obedience to instructions or laws instead of discretion, judgment, or skill." Burrell v. United States , 467 F.3d 160, 164 (2d Cir. 2006) ; BLACK'S LAW DICTIONARY (10th ed. 2014). See also, Shipley v. City of New York , 25 NY3d 645, 655 (2015) (defining ministerial acts as "conduct requiring adherence to a governing rule, with a compulsory result").
A municipality is not entitled to immunity for ministerial actions which violate a special duty owed to the plaintiff, apart from any duty to the public. McLean v. City of New York , 12 NY3d 194, 203 (2009) ; Flagstar Bank, FSB v. State of New York , 114 AD3d 138, 143 (2d Dept. 2013). On the other hand, the "governmental function immunity defense" shields a municipality from liability for discretionary actions, meaning those involving the "exercise of reasoned judgment" which could typically produce different acceptable results. Valdez v. City of New York , 18 NY3d 69, 76 (2011). It insulates a municipality from liability for the negligence of its employees, including police officers, in the performance of their duties where the conduct involves the exercise of professional judgment such as making tactical decisions. Kovit v. Estate of Hallums , 4 NY3d 499, 506 (2005) ; Arias v. City of New York , 22 AD3d 436, 437 (2d Dept. 2005) ; James v. City of New York , 2019 NY Slip Op 30324(U), 2019 NY Misc. LEXIS 551, *3 (Sup. Ct. NY Co. 2019). However, this immunity is extended to the municipality only where the actions of its employees resulted from the exercise of sound judgment which would normally produce acceptable results, and where it has acted in compliance with its established procedures. Johnson v. City of New York , 15 NY3d 676, 681 (2010) ; Relf v. City of Troy , 169 AD3d 1223, 1227 (3d Dept. 2019) ; Normanskill Cr., LLC v. Town of Bethlehem , 160 AD3d 1249, 1252 (3d Dept. 2018). Thus, immunity does not extend to situations where a police officer violates acceptable police practice. Lubecki v. City of New York , 404 AD2d 224, 233-234 (2003); Newsome v. County of Suffok , 109 AD3d 802 (2d Dept. 2013).
Courts must "examine the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred." Tara N.P. v. Western Suffolk Bd. of Coop. Educ. Servs. , 28 NY3d 709, 713 (2017). It must also examine the functions and duties of the employee's particular position; i.e., whether they "inherently entail the exercise of some discretion and judgment." Mon v. New York , 78 NY2d 309, 313 (1991). This court finds that PO Haviland's actions involved a government function as they were undertaken for the protection and safety of the public pursuant to the general police powers and inherently entailed the exercise of some discretion and judgment.
The relevant portions of Procedure 212-93 of the New York City Police Department ("NYPD") Patrol Guide ("Patrol Guide") provide that authorized tactical uses of patrol canines include: (a) "search[ing] buildings where a possible break-in is indicated or where a suspect may be hiding, provided non-suspects are not present in the building," and (b) "track[ing] suspects or missing persons." Defendant claims that Haviland did not violate the Patrol Guide because he and Bullet were "tracking" a suspect, which did not require that the building be cleared of non-suspects beforehand, as opposed to "searching" a building for a hiding suspect or possible break-in. However, this claim contradicts the NYPD Aided Report, which states: "AT TPO AIDED WAS BITTEN BY A K9 UNIT ON THE LEFT THIGH WHILE ESS7 [EMERGENCY SERVICE SQUAD] WAS CONDUCTING A PERP SEARCH AT ABOVE LOCATION." It also contradicts a memorandum from Neil Polis, Lieutenant of the Emergency Service Unit ("ESU") to the Commanding Officer of the ESU, which states that Haviland and Bullet were "directed to conduct a search inside the location by Deputy Inspector Schiff, Commanding Officer of the 106 Precinct, to search for the wanted perpetrator."
The inconsistency between defendant's claim that the police were "tracking" the perpetrator, and the NYPD Aided Report and Lieutenant Neil Polis' memorandum, both of which indicate that Haviland was conducting a "search" at the subject location, raises an issue of fact precluding summary judgment as to whether PO Haviland violated established police practice by not clearing the building of non-suspects prior to entering the building with Bullet. Furthermore, there is a triable issue of fact as to whether PO Haviland negligently lost control over Bullet. See , Relf, supra , 169 AD3d at 1227 ; Newsome , supra , 109 AD3d at 803. Accordingly, the City is not entitled to immunity under the government function immunity defense.
In light of the above, defendant's motion for summary judgment is denied. This constitutes the decision and order of the court.