Opinion
9030 Index 307653/11
04-18-2019
Esther MELENDEZ, et al., Plaintiffs–Appellants, v. CITY OF NEW YORK, Defendant–Respondent.
Jonah Grossman, Jamaica (Lawrence B. Lame of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for respondent.
Jonah Grossman, Jamaica (Lawrence B. Lame of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Kahn, Gesmer, Oing, JJ
While plaintiffs' vehicle was stuck in traffic on the Major Deegan Expressway, it was rammed multiple times by a SUV that had been pursued by New York City police officers. The SUV eventually pushed plaintiffs' vehicle onto the concrete barrier in the middle of the expressway. The driver of the SUV, going both forward and in reverse, also struck several other cars, while ignoring directions from officers to stop the car. Officers subsequently shot and killed the driver of the SUV, who was purportedly attempting to run them over.
Plaintiffs' negligence claims against the City based on the officers' vehicular pursuit of the SUV fails, as that pursuit had terminated by the time the SUV reached the expressway where plaintiffs' car was stopped in traffic. The actions of the driver of the SUV were the sole proximate cause of plaintiffs' injuries (see Greenawalt v. Village of Cambridge, 67 A.D.3d 1158, 1160, 888 N.Y.S.2d 295 [3d Dept. 2009] ; Fappiano v. City of New York, 292 A.D.2d 566, 567, 739 N.Y.S.2d 436 [2d Dept. 2002] ). Similarly, the record demonstrates that the officers' conduct was not reckless, as would be required to give rise to liability (see Vehicle and Traffic Law § 1104[e] ; Saarinen v. Kerr, 84 N.Y.2d 494, 501–502, 620 N.Y.S.2d 297, 644 N.E.2d 988 [1994] ). We need not determine whether the City is entitled to governmental function immunity under these circumstances (compare Dorsey v. City of Poughkeepsie, 275 A.D.2d 386, 387, 712 N.Y.S.2d 604 [2d Dept. 2000], lv dismissed in part denied in part 96 N.Y.2d 789, 725 N.Y.S.2d 635, 749 N.E.2d 204 [2001], with Foster v. Suffolk County Police Dept., 137 A.D.3d 855, 857, 26 N.Y.S.3d 781 [2d Dept. 2016] ).
Plaintiffs' claims for intentional infliction of emotional distress against the City is "barred as a matter of public policy" ( Dillon v. City of New York, 261 A.D.2d 34, 41, 704 N.Y.S.2d 1 [1st Dept. 1999] ). Furthermore, the evidence fails to raise a triable issue of fact as to whether the discharge of police weapons to prevent the SUV from harming officers on foot or members of the public who were stuck in traffic was "extreme and outrageous conduct" sufficient to support the claim for negligent infliction of emotional distress ( Lau v. S & M Enters., 72 A.D.3d 497, 498, 898 N.Y.S.2d 42 [1st Dept. 2010] ; Sheila C. v. Povich, 11 A.D.3d 120, 130–131, 781 N.Y.S.2d 342 [1st Dept. 2004] ).