Opinion
Index No. 1044/2017 608582/2017 Motion Seq. Nos. 003 & 004 005 & 006
09-30-2021
DONNA COMUNIELLO and MICHAEL C. COMUNIELLO, Plaintiff, v. NASSAU COUNTY POLICE DEPARTMENT AND SEAN SULLIVAN, Defendants. DAVID ABRAMOV, by his Court-appointed Guardian KATYA SVERDLOV, ESQ. and ANGELA YAGUDAYEVA, Plaintiffs, v. PO SEAN SULLIVAN, PO ANTHONY LIGUORI THE NASSAU CAOUNTY POLICE DEPARTMENT THE COUNTY OF NASSAU AND DONNA COMMUNIELLO, Defendants.
Unpublished Opinion
Action No. 1
Action No. 2
SHORT FORM ORDER
Helen Voutsinas Justice of the Supreme Court
The following papers were read on these motions:
Notice of Motion, Affirmation in Support, Exhibits and Memorandum of Law .................................................1
Notice of Cross-Motion, Affirmation in Support of Cross Motion and in Opposition to Motion, Exhibits and Memorandum of Law..............2
Affirmation and Affidavit in Opposition to Motion, Exhibits and Memorandum of Law......................................................3
Affirmation in Opposition to Cross Motion and in Reply and Further Support of Motion, Exhibit and Memorandum of Law............4
Affirmation in Opposition to Motion ..............................................................................5
Affirmation in Reply on Cross Motion ..............................................................................6
Affirmation in Reply on Motion, Exhibits and Memorandum of Law ..............................................................................7
Upon the foregoing papers, defendants P.O. Sean Sullivan (hereinafter "Officer Sullivan"), P.O. Anthony Liguori (hereinafter "Officer Liguori"), Nassau County Police Department (hereinafter "NCPD"), and the County of Nassau (hereinafter "Nassau") move for an Order pursuant to CPLR §3212, granting summary judgment to defendants, dismissing all claims and all cross claims against them. Plaintiffs Donna Comuniello and Michael C. Comuniello (hereinafter, jointly "the Comuniellos") oppose the motion and cross move for an Order granting them summary judgment on the issue of liability. Plaintiffs David Abramov, by his Court appointed Guardian Katya Sverdlove, Esq., and Angela Yagudayeva (hereinafter, jointly "the Abramovs") oppose the defendants' motion.
Defendants assert that their motion for summary judgment should be granted based on the emergency doctrine. Defendants argue that they are entitled to summary judgment because they were responding to a 911 call and were engaged in an emergency operation as a matter of law; the evidence demonstrates that movants were not reckless in their response to an emergency situation; and even under a negligence standard summary judgment is appropriate because Donna Comuniello's negligence was the sole proximate cause of the accident. In support of their motion, defendants submit their attorney's affirmation, the pleadings, and transcripts of the Mrs. Comuniello's 50-h hearing and the parties' depositions.
Plaintiffs the Abramovs and the Comuniellos oppose the motion for summary judgment, and the Comuniellos cross move for summary judgment on the issue of liability. Plaintiffs claim that the police officers operated their vehicle in a reckless, negligent, and careless manner by driving more than double the posted speed limit, allegedly without emergency lights activated to warn motorists and/or pedestrians of their approach, while allegedly responding to an emergency situation.
In support of their cross motion, the Comuniellos submit their attorney's affirmation, the transcript of a nonparty witness' deposition, the Event Data Recorder ("EDR") data from the police vehicle and various photos. They also rely upon the party deposition transcripts submitted by defendants. In opposition to defendants' motion, the Abramovs submit their attorney's affirmation, an expert affidavit and the transcript of a nonparty witness' deposition, video surveillance and accident reports.
Defendants oppose the cross-motion, arguing that that plaintiff Mrs. Comuniello failed to yield the right of way to the Officers and thus assert that Mrs. Comuniello was the proximate cause of the collision.
Factual and Procedural Background
The plaintiff, Mrs. Comuniello, and her husband suing derivatively, commenced Action No. 1 against the defendants by filing of a summons and complaint on February 22, 2017. The action stems from a motor vehicle accident that occurred on July 21, 2016 at approximately 9:37 a.m. The Comuniellos allege that defendants acted recklessly by failing to keep a proper lookout to see plaintiff Comuniello's vehicle and by failing to drive at a speed which would allow them to stop their vehicle and avoid the collision. It is alleged that Mrs. Comuniello's vehicle was struck by defendants and propelled into a store front and caused to strike a pedestrian, plaintiff David Abramov, who ultimately died from his injuries. Mrs. Comuniello suffered a broken back and permanent brain damage. The complaint alleges causes of action sounding in negligence and loss of consortium. The following facts alleged are relevant to a determination of the motions.
On or about July 21, 2016, Officer Sullivan was operating a 2013 Ford Explorer police vehicle on Broadway at or near its intersection with New York Avenue, in Massapequa, New York. Prior to the accident, Officer Sullivan and his partner Officer Liguori were in South Seaford, New York when they heard news of a fire with a disabled person trapped inside a building over the police radio. They were not dispatched to respond to the fire, but both Officers testified that they mutually decided to respond, although neither could recall details of a conversation regarding this decision. The Officers further testified that there is no set protocol for responding. Officer Sullivan testified that he sometimes asks if his presence is needed at a call, but this time he did not. Officer Sullivan also testified that he knew the fire department and two police units were in close proximity to the fire and had been designated to respond.
While travelling on Broadway towards the fire, the Officers approached a red turning signal at the intersection of Broadway and Sunrise Highway. At his deposition, Officer Liguori testified that he turned on the emergency lights and temporarily sounded the emergency siren in order to safely proceed through this signal. Officer Liguori further testified that he did not turn the emergency lights off and they remained on while driving down Broadway. Both Officers testified that activation of the emergency lights and sirens may be the responsibility of either the recorder/passenger or the driver. Both Officers testified that they did not communicate regarding whose responsibility this was in this instance. It is evident from the testimony that there is disagreement about whether the Officers had been partnered before, and thus whether any custom existed between the two regarding activation of the lights and sirens. Officer Sullivan testified that they had worked together somewhere between one and ten times. However, Officer Liguori testified this was the first time they had been partnered together.
A review of the Event Data Recording ("EDR") data submitted by defendants shows that the Officers traveled northbound on Broadway and accelerated from 57 MPH to 70 MPH in the five (5) seconds immediately preceding the collision. The posted speed limit on this road was 30 MPH. A review of the EDR data further showed that the brakes were engaged one (1) second prior to impact. Officer Sullivan testified that his view was unobstructed and it was a clear day with minimal traffic. Officer Liguori testified that although part of his duties included keeping a lookout for pedestrians and motorists, he also had other duties and was looking down for ten (10) to fifteen (15) seconds preceding the impact and did not see how it occurred. Defendants assert that Broadway in the area where the accident occurred is a commercial zone. To the contrary, plaintiffs assert that it is a residential neighborhood.
A review of the EDR data also shows that the accelerator in defendant's vehicle was 86.6% depressed just before impact. Defendants dispute the claim by the Comuniellos that Officer Sullivan "floored it" and assert that he steadily accelerated. The Officers did not have a traffic signal controlling their direction of travel and had the right of way. Mrs. Comuniello asserts that she was making a left turn onto northbound Broadway from New York Avenue at a rate between five and ten MPH when her vehicle was struck on the rear passenger side. The collision propelled Mrs. Comuniello's car through a store window causing her to sustain severe injuries. The collision also caused her vehicle to strike pedestrian plaintiff Abramov, who ultimately died from his injuries.
Mrs. Comuniello testified that she entered the intersection after making a full stop at the stop sign controlling her direction of traffic on New York Avenue. She stated that she waited at the stop sign for three (3) to five (5) seconds, looked both ways, saw no approaching vehicles, and proceeded to make a lawful left turn into the northbound lane of Broadway.
Officer Sullivan testified that Mrs. Comuniello's vehicle was fully in the intersection while the police vehicle approached the intersection. Officer Sullivan claims that he hit his brakes upon seeing her vehicle but did not sound his horn and was ultimately unable to avoid collision. Officer Sullivan testified that he did not believe that sirens were an integral part of the emergency operation. Officer Liguori testified that he was operating the lights and sirens as the recorder that day, and he did not use the sirens when they approached the intersection. Officer Liguori further explained that he was taught to use the sirens to clear an intersection when not proceeding with the right-of-way, consistent with his training.
Retired Detective John Lapine, the lead investigator with regard to the accident, testified as his deposition that the police operator should have been able to see the Comuniello vehicle. He testified that a siren should have been engaged to alert any motorist approaching the intersection with the limited visibility. He also stated that driving down a commercial road at 9:30 in the morning at 70 miles an hour with no lights and no sirens could be dangerous.
The Comuniellos also rely on the non-party deposition testimony of Debra Hoffman to corroborate the allegations that the police vehicle did not have sirens or emergency lights on when they approached the intersection. Mrs. Hoffman stated that she was working at the front desk in a physician's office facing the intersection when she witnessed the collision. She testified that she first noticed the accident when she heard the noise of the impact. She immediately looked out the clear glass door of her office and the first thing she saw was the police SUV still coming to a stop. She testified that she saw the police car clearly and that the police SUV had neither its flashing lights nor sirens turned on. She immediately rushed outside and observed the police vehicle after it had come to a stop, and stated that again that the police vehicle had neither its lights nor sirens turned on. Mrs. Hoffman further claims that when another police car arrived on the scene a few minutes later, the responding officer reached into the crashed police vehicle and turned on the emergency lights. Mrs. Hoffman testified that following the accident, detectives from the NCPD questioned her about what she had observed, and that when she told them that the police SUV did not have its emergency lights or sirens on at the time of the collision, they kept telling her that it did have its lights and sirens on. She testified that they tried to get her to change her statement and to say that the emergency lights and sirens were turned on, but she refused to do so.
Defendants, for purposes of these motions, concede that the police vehicle's lights were turned off and assert that regardless of whether the lights were on or off, defendants did not act recklessly in responding to this emergency.
Additionally, the Abramovs submitted the affidavit of an expert witness. John Pollini, a retired member of the NYPD, who submitted an affidavit providing his opinion that the defendants violated proper, accepted and standard police practice and procedures which was a substantial factor in causing the accident.
Discussion and Ruling
A proponent of a summary judgment motion must make a prima facie case of entitlement to judgment as a matter of law when there are no material issues of fact (Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]). Summary judgment is a drastic remedy that is awarded only when it is clear that no triable issue of fact exists. (Id. at 325). Summary judgment is the procedural equivalent of a trial (Museums at Stony Brook v. Village of Patchogue Fire Dept., 146 A.D.2d 572 [2d Dept 1989]). The court's role is issue finding rather than issue determination (see, e.g, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]; Gervasio v. Di Napoli, 134 A.D.2d 235, 236 [2d Dept 1987]; Assing v. United Rubber Supply Co., 126 A.D.2d 590 [2d Dept 1987]).
Furthermore, the burden falls upon the moving party to demonstrate that, on the facts, it is entitled to judgment as a matter of law (see, Whelen v. G.T.E. Sylvania Inc., 182 A.D.2d 446 [1st Dept 1992]). The movant's failure to make a prima facie showing of entitlement to judgment as a matter of law requires a denial of the motion, regardless of the sufficiency of the opposing papers. (See Winegrad v. N.Y.U. Medical Center, 64 N.Y.2d 851 [1985]). In considering a summary judgment motion, the Court reviews the record in the light most favorable to the non-moving party. (Stukas v. Streiter, 83 A.D.3d 18, 22 [2d Dept 2011]).
It is well settled that a party appearing in opposition to a motion for summary judgment must lay bare its proof and present evidentiary facts sufficient to raise a genuine triable issue of fact (Morgan vNew York TeL, 220 A.D.2d 728, 729 [2d Dept 1995]; see, Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065 [1979]; World Trade Knitting Mills v. Lido Knitting Mills, 154 A.D.2d 99 [2d Dept 1992]).
A motion for summary judgment should not be granted where there are facts in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility. (Ferguson v. Shu Ham Lam, 59 A.D.3d 388, 389 [2d Dept 2009]; Baker v. D.J Stapleton, Inc., 43 A.D.3d 839 [2d Dept 2007]). Thus, summary judgment is inappropriate where triable issues of fact or credibility are raised that require a trial. (Brown v. Kass, 91 A.D.3d 891, 895 [2d Dept 2012]).
The definition of an emergency operation is broad, and is set forth in Vehicle and Traffic Law ("VTL") §114-b:
The operation, or parking, of an authorized emergency vehicle, when such vehicle is engaged in . . . responding to, or working or assisting at the scene of accident, disaster, police call, alarm of fire, actual or potential release of hazard use materials or other emergency. Emergency operation shall not include returning from such service.
VTL §1104 provides the driver of an emergency vehicle involved in an emergency operation qualified immunity in certain instances. VTL § 1104[b] provides, in pertinent part, that the driver of an authorized emergency vehicle may:
2. Proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation;
3. Exceed the maximum speed limits so long as he does not endanger life or property;
......VTL §1104[c] provides that:
Except for an authorized emergency vehicle operated as a police vehicle or bicycle, the exemptions herein granted to an authorized emergency vehicle shall apply only when audible signals are sounded from any said vehicle while in motion . . . and when the vehicle is equipped with at least one lighted lamp . . .
VTL §1104[e] provides that:
The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others."
Defendants assert that they are entitled to summary judgment pursuant to VTL § 1104, since the standard of their conduct is not judged by ordinary negligence, but instead that "the driver of an authorized emergency vehicle [is granted with] special driving privileges when involved in an emergency operation" (Frezzell v. City of New York, 24 N.Y.3d 213, 217 [2014]).
Defendants assert that summary judgment should be granted because they were engaged in an emergency operation and therefore the reckless standard applies citing, Criscione v. City of New York, 97 N.Y.2d 152 [2001]). They state that because they were responding to an emergency situation, a house fire with an entrapped person, in an authorized emergency vehicle, the reckless standard of care applies to their conduct. Defendants argue that they were not reckless in their response to the emergency situation. They argue further that whether the Officers knew that other units were responding or whether the lights and sirens were on is irrelevant. They also argue that despite the Officers' high speeds in a 30 MPH limit road, they did not act recklessly. Defendants further argue that even under the negligence standard, Mrs. Comuniello was the sole proximate cause of the accident when she failed to yield the right of way. Defendants cite to VTL §1142[a] and VTL §1172 for the proposition that Mrs. Comuniello had an obligation to stop at whatever point gave her the opportunity to view traffic coming from the left and right of her. They further assert that once stopped she had an obligation to yield the right of way to oncoming traffic. They state that there is no dispute as to how the accident occurred in that Mrs. Comuniello fully stopped and then proceeded to go through the intersection without yielding the right of way, citing Yelder v. Walters, 64 Ad3d 762 [2d Dept 2009]).
The Comuniellos and the Abramovs argue that there is at least a genuine triable issue of fact as to whether or not the Officers' conduct in this case falls within the enumerated list of protected conduct set forth in New York Vehicle and Traffic Law §1104. They argue that defendants' conduct, including failing to keep a proper lookout and failing to see that which was there to be seen, is not conduct specified as statutorily exempt from the rules of the road subject to the standard of recklessness set forth in VTL §1104, and thus the ordinary negligence standard applies, citing Kabir v. County of Monroe, 16 N.Y.3d 217 (2011). Plaintiffs argue that defendants have failed to eliminate all triable issues of fact as to their ordinary negligence.
The plaintiffs further argue that even if the higher reckless disregard standard is applied, summary judgment must still be denied as defendants have failed to eliminate all issues of fact as to whether their conduct constituted reckless disregard at the time of the accident based upon the nonparty witness testimony of Debra Hoffman and John Pollini's expert affidavit.
The Comuniellos and Abramovs also assert that issues of credibility exist that must be decided by a jury. Plaintiffs allege that the NCPD actively worked to misrepresent the facts of this case and cover up the reckless actions of Officers Sullivan and Liguori. Plaintiff Abramov, in their counsel's affirmation, assert that over forty (40) police officers arrived at the scene of the accident, yet no statements were taken from Officer Sullivan or Liguori.
The Comuniellos assert that the police vehicle's sirens and emergency lights were turned off, as corroborated by the non-party witness, Debra Hoffman, and thus Mrs. Comuniello had no warning of defendants' approaching vehicle.
The Comuniellos rely on Allen v. Town of Amherst, 8 A.D.3d 996 [4th Dept 2004] to show that although driving with excessive speed is a protected action, it is a qualified protection only granted when the officer acts with due regard for the safety of all persons. In Allen, the officer drove through a "small village" with "minimal traffic" at rates between "62-72 MPH" and was aware that another officer was also responding to the call. Although the officer in Allen had his emergency lights and sirens activated, unlike the Officers in the instant case, his failure to account for the safety of all motorists and pedestrians while driving through a populated area created a question of fact regarding recklessness. The Court notes that this case was appealed after a trial on the matter.
The Comuniellos further rely on Katanov v. County of Nassau, 91 AD3D 723 [2d Dept 2012] to support their motion for summary judgment. In Katanov, the court held that a driver of an emergency vehicle is negligent when an accident occurs because they "failed to see that which through proper use of his or her senses he or she should have seen." (Id. at 725). In Katanov, defendant police officer struck plaintiff, a pedestrian, in a parking lot. The officer's conduct that led to the accident amounted to a failure to see the plaintiff, thus, the court held that his conduct did not fit within any of the VTL §1104[b] categories, and thus ordinary negligence is the appropriate standard. (Id.) The Comuniellos also cite Burrell v. City of New York 49 A.D.3d 482 483 [2d Dept 2008], where the court denied summary judgment to defendants because issues of fact remained regarding whether the police vehicle had its siren and lights on and whether the officer accelerated or slowed down while approaching the intersection in order to account for pedestrians and motorists.
Defendants assert that their response to a police call in an authorized police vehicle entitles the Officers hereto protection under VTL §1104. Defendants rely onProce v. Town of Stony Point, 185 A.D.3d 975 [2d Dept 2020]). In Proce, defendant police officer was dispatched to respond to a police call when he failed to see plaintiff stopped at a stop sign and made a left turn into plaintiff's vehicle. The Second Department held that the Supreme Court erred in granting summary judgment for plaintiff because the privilege to "disregard regulations governing directions of movement" is protected under VTL §1104[b][4]. The Court found the officer's conduct falls within VTL §1104 despite the fact that he turned off his lights and sirens after learning that another officer had been dispatched also. (Proce, 185 A.D.3d at 976). The Court also noted that "a momentary lapse in judgment" is not enough to show an officer's conduct rose to the level of "reckless disregard for the safety of others." (Id. at 978, citing Frezzell v. City of New York, 24 N.Y.3d 213, 217-218 [2014]).
It is evident that VTL §1104 provides certain privileges to drivers of authorized vehicles when responding to an emergency call. They may proceed through stop signs, exceed speed limits and disregard turning restrictions, but in all cases only with due regard for the safety of others. VTL §1104[e] makes clear that the exemptions do not relieve a driver from the duty to drive with due regard for the safety of all persons. "When a police officer engages in the specific conduct exempted from the rules of the road by VTL 1104(b), such conduct may not form the basis of civil liability to an injured third party unless the officer acts in reckless disregard for the safety of others." (Miller v. Suffolk County Police Dept., 105 A.D.3d 918 [2d Dept 2013]). As stated by the Court of Appeals, "[t]he reckless disregard standard of care in [VTL] §1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by [VTL] 1104(b); any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence." (Kabir v County of Monroe, 16NY3d 217, 229 [2001]).
Consequently, any other injury-causing conduct, such as failing to see what reasonably should have been seen or failing to keep a proper lookout, is not protected conduct. (See Benn v. New York Presbyt. Hosp., 120 A.D.3d 453 [2014])(holding that defendant ambulance driver's failure to see a pedestrian already in the crosswalk is not protected conduct under VTL §1104[b] despite the fact that ambulance had a green light and thus the right of way).
Determining whether the Officers acted recklessly is a "fact-specific inquiry" that weighs the risk created by the Officers conduct with their duty to respond quickly to emergency situations. (See Frezzell v. City of New York, 24 N.Y.3d 213, 217-218 [2014]). Ya Allen v. Town of Amherst, supra, the Court held that "[a]lthough all police officers in patrol vehicles responding to police calls are involved in an emergency operation within the meaning of [VTL] §114-b ... the nature of the call nevertheless is relevant in determining whether a responding officer's conduct was in reckless disregard for the safety of others." (Allen, supra, 8 A.D.3d at 997).
The facts of this case are similar to Allen, where the officer was "operating his police vehicle at speeds of up to 70 miles per hour through a small village where there was "light" to "moderate" traffic on the road." Id. In the instant case, Officers Sullivan and Liguori were not dispatched to respond to the fire, had no training in putting out fires, and were aware that both the fire department and two police units, in closer proximity to the fire, were already headed to the scene. The risk created by their excessive speed must be considered in light of this.
In addition to the nature of the call, the type of area where the accident occurred, the nature of the officer's conduct, and the policies of the police department also must be considered. (Saarinen v. Kerr, 84 N.Y.2d 494 [1994]). In Burrell, issues of fact existed regarding whether the police vehicle had its siren and lights on and whether the officer accelerated or slowed down while approaching the intersection in order to properly account for pedestrians and motorists. (Burrell v. City of New York, 49 A.D.3d 482 at 483). Similarly, here, although defendants concede that the police vehicle's lights and sirens were turned off for purposes of this motion, questions of fact remain regarding whether or not Officer Sullivan slowed down before seeing Mrs. Comuniello in the intersection in order to properly survey the area for motorists and/or pedestrians and in preparation to avoid potential collisions. John Pollini stated in his affidavit that slowing down to safely enter an intersection, even when the emergency vehicle has the right of way, is consistent with police procedures. Detective Gary T. Ferrucci further testified at his deposition that when driving at more than double the posted speed limit, it would be consistent with police procedures to use both the emergency lights and sirens to warn motorists and pedestrians. Failure to abide with these regulations, according to Mr. Pollini's opinion, is a reckless departure from police protocols.
This Court has reviewed all the affidavits and exhibits presented in support of and in opposition to the motion and cross-motion for summary judgement and finds that plaintiff has raised a triable issue of fact regarding whether Officer Sullivan and Officer Liguori's conduct exhibited a reckless disregard for public safety. The Court finds that based on the conflicting evidence of fact as to whether the defendants' failure to see what should have been reasonably seen and failure to keep a proper lookout is a question of fact to be determined by a jury as to whether there was a reckless disregard for public safety, taking into account (1) the nature of the emergency call; (2) the nature of where the accident occurred; (3) theOfficers' conduct and (3) the police department's rules and regulations. (Miller v Suffolk County Police Dept., 105 A.D.3d 918 [2d Dept 2013]; Krulik v. County of Suffolk, 62 A.D.3d 669 [2d Dept 2009]; Foster v. New York City Housing Authority, 251 A.D.2d 42 [1st Dept 1998]; Burrell v. City of New York, 49 A.D.3d 482 [2d Dept 2008]; Gordon v. County of Nassau, 261 A.D.2d 359 [2d Dept 1999]).
Furthermore, even assuming that the defendants did not exhibit a reckless disregard for the safety of others, issues of fact exist as to what was the proximate cause of the accident. Accordingly, the defendants' motion for summary judgment and the Comuniellos' cross motion for summary judgement are both DENIED.
This constitutes the decision and order of the Court.