Opinion
Index Number 9844/14
08-01-2017
DILLON COOK, BENJAMIN BEDELL, ZINOCHELLE FENSKE, KEVIN BELL, Plaintiffs, v. KYROLLOS E. WANEES, HANAA K. TAWFIK, THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, POLICE OFFICER RICHARD CALLAHAN and GALAXY LUXURY COACH, Defendants.
Short Form Order Present: HONORABLE HOWARD G. LANE Justice Motion Date March 28, 2017 Motion Cal. No. 35 Motion Seq. No. 4 The following papers numbered 1 to 14 read on this motion by the City of New York and Police Officer Richard Callahan, for summary judgment dismissing the complaint insofar as asserted against them, pursuant to CPLR 3212.
| PapersNumbered | |
|---|---|
| Notice of Motion - Affidavits - Exhibits | 1 - 4 |
| Answering Affidavits - Exhibits | 5 - 12 |
| Reply Affidavits | 13-14 |
Upon the foregoing papers it is ordered that the motion is determined as follows:
Plaintiffs in this negligence action seek damages for personal injures sustained when plaintiffs were struck by a vehicle operated by an intoxicated defendant Wanees on the Long Island Expressway (LIE). Plaintiffs and 17 other persons were passengers on a Galaxy Luxury Coach bus that had been hired to transport them to and from plaintiff Bedell's bachelor's party. As the bus was returning from Manhattan, plaintiffs and several other passengers exited the bus to assist police officer Richard Callahan in reattaching a horse trailer to a pickup truck. The trailer had detached when Callahan drove over a bumpy section of the LIE, at which point Callahan, who had been driving the pickup truck alone, turned on his emergency turret lights and hazard signals and maneuvered the truck and trailer to a stop, either in the right lane or on the right shoulder of the road. As plaintiffs were about to lift the trailer to reattach it to the pickup truck, Wanees, driving drunk with a blood alcohol level of .24, and who had fallen asleep at the wheel, drove a vehicle owned by defendant Hanaa K. Tawfik into the rear of the detached horse trailer, pushing it into plaintiffs.
The City defendants move for summary judgment in their favor on the ground that Wanees was the sole proximate cause of the accident. The motion is opposed in whole by plaintiffs and in part by Galaxy Luxury Coach.
Facts
The deposition testimony of the parties reveal the following: on February 1, 2014, plaintiffs Cook, Bedell and Bell together with 17 other friends and family met for dinner at a Long Island Steakhouse as part of Bedell's bachelor party. When dinner ended at approximately 10:00 pm., about 20 of the guests boarded a bus that had been hired by Bedell, which was owned by defendant Galaxy and operated by Joseph Ricciardella. The group then traveled to Manhattan to continue the party at several establishments. At the end of the party, the bus was to transport the men back to Long Island. At dinner, on the bus and at the various other locations, plaintiffs and the other party attendees consumed alcoholic beverages, the amount of which is not clearly known by any of them. However, the record indicates that at least some of the attendees were intoxicated. Some time at or about 3:30 a.m., on February 2, 2014, the party participants re-boarded the bus to return to Long Island. The bus traveled out of Manhattan through the Queens Midtown Tunnel and onto the eastbound LIE.
Police Officer Richard Callahan testified upon an examination before trial, as follows: he is an New York City Police Department (NYPD) police officer with the department's mounted horse unit and has been a member of this unit for the last ten (10) of his twenty (20) years with the NYPD. Officer Callahan had reported to work at the Cunningham Park barn in Queens on February 1, 2014 at 10:00 p.m. He was assigned to crowd control patrol in lower Manhattan. Callahan loaded his horse, which was kept at the barn, onto the trailer that had already been hitched to a marked NYPD pickup truck to drive to Manhattan. At around 4:00 a.m. he was finishing a tour of duty and returning to Queens. He drove across the Williamsburg Bridge, onto the Brooklyn Queens Expressway and then eastbound on the LIE. As he was driving at a speed of approximately 40 to 45 miles per hour in the middle lane passing the area between the exits for 108th Street and Grand Central Parkway, the roadway surface was very rough, with large potholes as well as rises and dips. This condition caused the trailer to detach from the hitch of the pickup truck, at which point the trailer swung out of control to the left and fishtailed. Callahan testified that he recognized this situation as dangerous and turned on the pickup truck's turret lights and hazard flashers. He then steered his pickup and trailer into the right lane and onto the highway's right shoulder. Callahan pulled the vehicle as far as he could into the shoulder, with the trailer still behind the pickup. After stopping, he exited the vehicle while leaving the turret and hazard lights on.
As the bus was continuing on the eastbound LIE, it began to slow down, and plaintiffs observed flashing emergency lights through the windows. Plaintiffs and others on the bus initially believed that the bus was being pulled over by the police. None of the plaintiffs spoke with the police officer at the scene, and they did not hear the conversation between the bus driver and the police officer. The only information plaintiffs had as to the reason that the bus was stopped on the highway was the driver's statement that a police officer needed assistance. Plaintiffs and some of their friends exited the bus to assist the police officer. Officer Callahan did not give them any instructions or directions.
Callahan testified that before he exited the truck, the party bus had stopped alongside the pickup and asked if he needed some help. Callahan testified that he replied that no help was needed, indicating that he would contact the NYPD Emergency Service Unit to reattach the trailer. As he was speaking to the driver of the party bus, the passenger door of the bus opened and several individuals came off the bus to assist in lifting the trailer onto the pickup's hitch.
Defendant Kyrollos Wanees testified that at around this time (4:00 a.m.), on February 2, he was driving his mother's car at a high speed in the right lane of the LIE. He admits that at the time of the accident, he had a blood alcohol level of .24, which is three (3) times the legal limit to operate a motor vehicle. Wanees testified that he had begun drinking alcoholic beverages at about 10:00 p.m., the evening before the accident at his friend's house in the Kew Gardens/Forest Hills neighborhood of Queens. He had driven his mother's car there and parked it. After he had his first drink, he and his friends decided to go to a bar in Astoria, using public transportation to travel there. From that point on, Wanees testified, he has no memory of where he and his friends went, nor does he recall how many alcoholic beverages he consumed that evening. After leaving the bar, his friends later told him, Wanees retrieved his parked car and began driving with the intention of going to South Ozone Park. Wanees was unable to recall the route he intended to drive to his friend's house and no memory of the route he actually drove to the place of the accident. All that Wanees recalls is waking up "all of a sudden" two (2) to three (3) seconds before the collision; he was driving at a high rate of speed in the right lane of the LIE; saw flashing emergency lights and the trailer on the right shoulder and inexplicably swerved to the right into the rear of the trailer.
Wanees and plaintiffs Cook, Bedell and Bell all acknowledge seeing the emergency flashing lights before Wanees collided into the horse trailer, injuring plaintiffs. Wanees was arrested following the accident and subsequently pled guilty to driving while intoxicated.
Discussion
The proponent of a motion for summary judgment must establish, prima facie, its entitlement to judgment as a matter of law, and must provide sufficient evidence demonstrating the absence of triable and material factual issues (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Walden Woods Homeowners Assn. v. Friedman, 36 AD3d 691 [2d Dept 2007] ). Failure to do so requires that the motion be denied regardless of the sufficiency of the opposing papers. The burden of proof then shifts to the opposing party to produce admissible evidence demonstrating the existence of triable and material issues of fact on which its claim rests (Zuckerman v. New York, 49 NY2d 557 [1980] ).
It is well settled that "[e]vidence of negligence is not enough by itself to establish liability," for it also must be proved that the negligence was a proximate, or legal, cause of the event that produced the harm sustained by the plaintiff (Sheehan v. City of New York, 40 NY2d 496, 501 [1976]). The courts have previously observed that "[t]he concept of proximate cause . . . has proven to be an elusive one, incapable of being precisely defined to cover all situations" (Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 314 [1980]). This is because the determination of proximate cause involves, among other things, policy-laden considerations; that is, the chain of causation must have an endpoint in order "to place manageable limits upon the liability that flows from negligent conduct" (id.; see, Sewar v. Gagliardi Bros. Serv., 51 NY2d 752, 759 [1980, Fuchsberg, J., concurring]; Ventricelli v. Kinney Sys. Rent A Car, 45 NY2d 950, 952 [1978], mod 46 NY2d 770 [1978]).
The principle governing determinations of proximate cause is that a "defendant's negligence qualifies as a proximate cause where it is 'a substantial cause of the events which produced the injury' " (Mazella v. Beals, 27 NY3d 694, 706 [2016], quoting Derdiarian, 51 NY2d at 315). Typically, the question of whether a particular act of negligence is a substantial cause of the plaintiff's injuries is one to be made by the factfinder, as such a determination turns upon questions of foreseeability and " 'what is foreseeable and what is normal may be the subject of varying inferences' " (Kriz v. Schum, 75 NY2d 25, 34 [1989], quoting Derdiarian, 51 NY2d at 315; see, Voss v. Netherlands Ins. Co., 22 NY3d 728, 737 [2014]).
When a question of proximate cause involves an intervening act, " 'liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence' " (Mazella, 27 NY3d at 706 [emphasis added], quoting Derdiarian, 51 NY2d at 315). Thus, "[w]here the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed" (Derdiarian, 51 NY2d at 315). Rather, "[t]he mere fact that other persons share some responsibility for plaintiff's harm does not absolve defendant from liability because 'there may be more than one proximate cause of an injury' " (Mazella, 27 NY3d at 706, quoting Argentina v Emery World Wide Delivery Corp., 93 NY2d 554, 560 n 2 [1999]). It is "[o]nly where 'the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct,' [that it] may . . . possibly 'break[ ] the causal nexus' " (Mazella, 27 NY3d at 706, quoting Derdiarian, 51 NY2d at 315; see Kush v City of Buffalo, 59 NY2d 26, 33 [1983]). To state the inverse of this rule, liability subsists "[w]hen . . . the intervening act is a natural and foreseeable consequence of a circumstance created by defendant" (Kush, 59 NY2d at 33; Lynch v Bay Ridge Obstetrical & Gynecological Assoc., 72 NY2d 632, 636 [1988]).
Courts have held that "[t]here can be more than one proximate cause of an accident and the issue of comparative negligence is generally a question for the jury to decide". (Wilson v. Rosedom, 82 AD3d 970 [2d Dept 2011).
Although, the evidence proffered by the City defendants established, prima facie, that the accident was proximately caused by the intoxicated Wanees when he fell asleep and suddenly awoke and drove his vehicle into the right lane into Callahan's trailer despite the flashing turret lights on Callahan's vehicle and the appearance of the hazard lights on the vehicle (see, Ely v. Pierce, 302 AD2d 489, 755 NYS2d 250; Siegel v. Boedigheimer, 294 AD2d 560, 562, 743 NYS2d 137; Lectora v. Gundrum, 225 AD2d 738, 739, 640 NYS2d 202; Metzler v. Brawley, 209 AD2d 487, 619 NYS2d 282), the court finds that moving City defendants have failed to establish that there is no triable issue as to whether the City defendants were not negligent or contributorially negligent, and that such conduct was not also a proximate cause of the accident along with Wanees..
Moreover, in opposition, plaintiffs present triable issues of fact. In opposition, plaintiffs submit, inter alia, affidavits of plaintiffs themselves; and an affidavit of Walter Signorelli, a retired police officer who served more than thirty one (31) years and whom during his tenure conducted or supervised numerous investigations of vehicle accidents and police emergency vehicle accidents who opines, inter alia, that: "by requesting the passengers to exit the bus in a moving lane of travel to help him lift the hitch onto the horse trailer, the defendant Officer Callahan violated police practices and procedures by placing the plaintiffs in a hazardous situation with a high probability that a collision would occur . . . that the defendant Officer Callahan should have instead immediately instructed the bus driver to leave the area, call a tow truck, and place flares, cones, and triangle markers to warn oncoming traffic of the disabled vehicles . . . These failures were proximate causes of the subject collision and the plaintiff's injuries." Such evidence revealed that there is a trial issue as to whether moving defendant acted in violation of New York Vehicle & Traffic Law § 1202, when he stopped his vehicle and horse trailer in the right lane of travel and directed the party bus to stop and remain in travel lanes on the expressway.
The court finds that there are triable issues of fact as to inter alia, how the accident happened, whether moving defendant proximately caused the accident, and whether moving defendant acted reasonable under the circumstances.
As there are triable issues regarding the moving defendant, the case cannot be disposed of summarily as against defendants, the City of New York, the New York City Police Department and Police Officer Richard Callahan.
Accordingly, the motion is denied.
This constitutes the decision and order of the court. Dated: August 1, 2017
/s/ _________
Howard G. Lane, J.S.C.