Opinion
15388/2013
01-30-2020
Michael MURRAY, Plaintiff, v. COUNTY OF SUFFOLK, Suffolk County Police Department, Daniel Parella and Thomas Ingald, Defendants.
SCARING & CARMAN, ESQS., Attorney for Plaintiff, 666 Old Country Road, Suite 501, Garden City, New York 11530 DENNIS M. BROWN, ESQ., SUFFOLK COUNTY ATTORNEY, Attorney for Defendants, H. Lee Dennison building, 100 Veterans Memorial Highway, P.O. Box 6100, Hauppauge, New York 11788-0099
SCARING & CARMAN, ESQS., Attorney for Plaintiff, 666 Old Country Road, Suite 501, Garden City, New York 11530
DENNIS M. BROWN, ESQ., SUFFOLK COUNTY ATTORNEY, Attorney for Defendants, H. Lee Dennison building, 100 Veterans Memorial Highway, P.O. Box 6100, Hauppauge, New York 11788-0099
Sanford Neil Berland, J.
Upon the following papers numbered 1 to 26 read on these motions for summary judgment: Notice of Motion and supporting papers 1 - 14; Notice of Cross-Motion and supporting papers 15 - 24; Answering Affidavits and supporting papers 15 - 24 and 25 - 26; and Replying Affidavits and supporting papers 25 - 26, it is,
ORDERED that the motion by defendants County of Suffolk, Suffolk County Police Department, Daniel Parella, and Thomas Ingald for summary judgment dismissing the complaint against them is denied; and it is further
ORDERED that the cross-motion by plaintiff Michael Murray for partial summary judgment in his favor as to defendants' liability is denied.
Plaintiff Michael Murray, a Port Authority Police Officer, was driving his 2010 Chevrolet pickup truck eastbound on the Southern State Parkway on the night of May 2, 2012, returning home from an annual training session in Jersey City, New Jersey, when he struck a Suffolk County Police Department (SCPD) patrol car that had been left - unoccupied and unattended - in the roadway's left travel lane. The light bar on the patrol car — unit 1-10, from the SCPD's First Precinct — was on, the weather was clear, the roadway was illuminated and the patrol car was situated on a straight section of road, on the upward incline where the Southern State passes over Straight Path at Exit 36, more or less opposite the entrance ramp onto the parkway from southbound Straight Path. According to defendants, unit 1-10 — which its police-officer occupants, defendants Ingald and Parella, had exited in order to participate in the foot pursuit of an individual who had rammed his vehicle into a patrol car that had been pursuing him on streets south of the parkway - should, thus, have been visible from a substantial distance away. Murray, testified, however, that he was distracted by the flashing lights of the patrol cars stopped in the shoulder on his side of the parkway, particularly one - a marked SCPD patrol car - that had all of its emergency lights - overhead lights, barrier deck lights and strobe and tail lights — illuminated, by the flashing lights from approximately five other emergency vehicles that were stopped in the off ramp on the westbound side of the parkway, and by the glare from the headlights of oncoming traffic, and that he did not see unit 1-10 in the left lane until — less than a second before the impact, and therefore too late to avoid the collision - he moved his vehicle into that lane from the center lane to avoid the five or so vehicles ahead of him that were moving from the right lane into the center lane in response to the patrol cars that were stopped on the shoulder on the righthand side of the roadway.
The defendants now move for summary judgment in their favor , urging that Murray's conduct was the sole proximate cause of the parkway collision and, consequently of Murray's alleged injuries, as he rear-ended a stationary vehicle. They also argue that they are immune from liability for Murray's injuries absent a showing that unit 1-10 was operated recklessly. In support of their motion, defendants submit, among other things, copies of SCPD "internal correspondence," a copy of a "Suffolk County Police Department Vehicle Accident Summary," a transcript of plaintiff's General Municipal Law § 50-h hearing testimony, transcripts of the depositions of plaintiff, of defendant Daniel Parella and of non-parties Police Officer Cristopher Melough and Lieutenant James Rafferty, copies of pages from defendant Parella's memo book and SCPD "Internal Correspondence," dated May 3, 2012, from then Sergeant Rafferty to the Police Accident Board. Murray opposes the defendants' motion and cross-moves for partial summary judgment in his favor with respect to the defendants' liability, contending that in parking unit 1-10 in the left travel lane of the Southern State Parkway "for no apparent reason," the defendants violated Vehicle and Traffic Law § 1201, that the court must, therefore, find that the defendants were negligent as a matter of law and, further, that the police officers who left the patrol car unattended in the left lane acted recklessly, without "due regard for the safety of others." In addition to relying upon materials tendered by the defendants, Murray submits, among other things, the transcripts of the depositions of defendant Ingald and copies of certain SCPD rules and operating procedures.
An earlier motion by the defendants for summary judgment was denied without prejudice to renewal following the completion of discovery, including the deposition of Officer Parella - the driver of unit 1-10, and the production of the memo book entries and the supervisor complaint report that had been made by Lieutenant James Rafferty with respect to Officer Parella's actions on May 2, 2012.
The named defendants are the SCPD, the County of Suffolk and the two Police Officers who had been patrolling in unit 1-10 and left it on the roadway's left travel lane. As the SCPD is an administrative arm of the County of Suffolk and, therefore, lacks the capacity to be sued as a separate entity (see Valle v Police Dept. Suffolk Cent. Records , 2010 US Dist LEXIS 107315, 2010 WL 3958432 [ED NY 2010] ), the court "construes the complaint as against Suffolk County" (id . at 4).
A party moving for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Alvarez v Prospect Hosp. , 68 NY2d 320, 324, 508 NYS2d 923, 925 [1986] ). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853, 487 NYS2d 316, 318 [1985] ). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (see Vega v Restani Constr. Corp. , 18 NY3d 499, 942 NYS2d 13 [2012] ). Mere conclusions, expressions of hope, or unsubstantiated allegations are insufficient to raise a triable issue (see Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595 [1980] ). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (see Ortiz v Varsity Holdings, LLC , 18 NY3d 335, 339, 937 NYS2d 157, 159 [2011] ).
The main contours of the sequence of events leading up to the collision between Murray's pickup truck and unit 1-10 — many, but not all, of the details of which are confirmed by radio transmission records - are largely undisputed. Officers Ingald and Parella had been working a 3:00 pm to 11:00 pm tour in the SCPD's First Precinct's Sector 114, which encompasses portions of Copiague and North Amityville. They were assigned to a marked patrol car, unit 1-10. Officer Parella was the driver. At approximately 10:30 pm, as Ingald and Parella were nearing the end of their shift, another unit from the First Precinct put out a radio call that their patrol car and another police vehicle had been rammed by a vehicle they had been pursuing, that the driver and an occupant of the vehicle had fled on foot and that police officers were pursuing the subjects in the vicinity of Straight Path and the Southern State Parkway in Wyandanch. Although at deposition neither Ingald nor Parella could recall the details of any conversation between them, the precinct dispatcher or any other unit at that time or at any later point that evening - or even if any such conversation, or conversations, had taken place - both testified that they immediately headed to the site of the pursuit, entering onto the Southern State Parkway from Route 109 or New Highway and heading east. Both also testified that as they neared Exit 36, where the Southern State Parkway passes over Straight Path, they saw a group of officers crossing through the eastbound lanes of traffic, over the concrete barrier that separated the eastbound side of the parkway from the westbound side, and then through the westbound lanes . To slow traffic on the eastbound lanes in order to allow the pursuing officers to cross that side of the parkway, Parella turned on the lightbar and siren on unit 1-10, slowed the vehicle and moved it across the eastbound lanes of traffic, from the right lane to the left lane. Parella then brought unit 1-10 to a stop in the left lane, with its lightbar still activated, and then each officer exited the vehicle and proceeded over the concrete barrier and across the westbound side of the parkway, to assist the police officers who were pursuing the suspect, or suspects, who had disappeared into the overgrowth on the other side of the parkway.
At the time of the accident, defendant Parella was a Police Officer, but he had been promoted to Detective by the time he was deposed.
Defendant Parella testified that he saw the suspect running ahead of the pursuing officers. Officer Ingald testified, however, that he saw only police officers crossing the parkway as he and Officer Parella arrived at the scene. Officer Cristopher Melough, who had been driving the lead pursuit vehicle and who led the foot chase across the Southern State Parkway after the suspect backed his vehicle into Officer Melough's patrol car, testified that he threaded his way across the parkway through traffic evidently without the aid of any arriving patrol cars.
An entry in defendant Parella's memo book indicates that he set out to assist the "105A pursuit" at 10:33 pm and "blocked" the left lane of the Southern State Parkway with his police department vehicle at 10:36 pm. Radio transmissions indicate that the suspect was in custody by 10:55 pm. In the interim, a K9 unit had joined the search - at 10:38 pm according to radio transmissions, a perimeter had been established around the sump in which the suspect was hiding, and, according to the testimony of several witnesses, a SCPD helicopter had arrived at the scene to help locate the suspect from above. Murray testified that the crash occurred at 10:45 or 10:50 pm, but James Rafferty, who at the time was a Sergeant assigned to the First Precinct , testified that he was stopped in one of the entrance ramps onto the parkway from Straight Path at the time the accident occurred and immediately called it in, at 10:50 pm, which is consistent with Officer Ingald's testimony that he heard the crash 15 to 20 minutes after he had gotten out of unit 1-10 and entered onto the parkway on foot. Parella heard the crash as well, although at first he did not know it was the patrol car he had been driving. Both officers returned to the scene of the accident and rendered aid to Murray.
Subsequently, Officer Rafferty was promoted to Lieutenant.
Plaintiff is a police officer employed by the Port Authority of New York and New Jersey. He testified that at approximately 10:45 p.m. on the night of the accident, as he was returning home from an annual training session in Jersey City, he was driving his black 2010 Chevy Silverado eastbound in the center lane of the Southern State Parkway traveling at approximately 60 miles per hour. There was a moderate amount of traffic, the weather was clear and the roadway was dry. From a distance of approximately 200 to 250 feet, he observed a marked Suffolk County police car stopped in the roadway's right-hand shoulder, just west of Exit 36 (Straight Path), with all of its emergency lights - overhead lights, barrier deck lights and strobe and tail lights - illuminated, prompting vehicles traveling in the right-most lane of travel to move into the center lane. In response to the approximately five vehicles ahead of him entering the center lane, plaintiff moved his vehicle into the left lane. He described the roadway at that point as straight but uphill. Approximately three to five seconds after plaintiff did so, the front of his vehicle impacted the rear of a stopped SCPD police vehicle, which he saw for the first time "[l]ess than a second" prior to the collision. He testified that at the moment that he collided with the police vehicle, he saw that the rear portion of its roof-mounted light bar was illuminated. At that point, his foot had been off the gas pedal for 15 to 20 seconds and he was "still slowing down." When asked if there "was anything distracting him" after he moved his vehicle into the left lane, he testified that in addition to the lights from the police vehicle stopped in the right-hand shoulder of the parkway, there was glare from the headlights of oncoming traffic in the westbound lanes and the emergency lights that were illuminated on the approximately five emergency vehicles that were stopped in the off ramp for the southbound Straight Path exit on that side of the parkway. Plaintiff further testified that he first observed the emergency vehicles in the westbound lanes of the parkway while he was still traveling in the eastbound center lane, prior to his movement into the left lane.
Daniel Parella is now a detective with the SCPD but at the time of the collision was a Suffolk County police officer working a 3:00 p.m. to 11:00 p.m. shift. He testified that on the evening of the incident, he and his partner, Police Officer Tom Ingald, were assigned a marked SCPD vehicle and he was the vehicle's driver. Upon questioning, Detective Parella explained that both he, as the driver of the police vehicle, and Ingald, as its passenger, had access to the knobs used for activating the vehicle's emergency lights and sirens. His attention directed to the minutes prior to the subject accident, Parella testified while patrolling the North Amityville area, he heard a police radio transmission describing a criminal suspect using a vehicle to intentionally "ram" a SCPD police vehicle, injuring officers. Upon hearing that radio communication, and without prompting, he "headed toward the officers that needed assistance," driving in the right lane of the eastbound Southern State Parkway. Parella stated that upon nearing the subject location, he observed a subject and police officers running across the Southern State Parkway from the eastbound side across to the westbound side and into a sump. He indicated that he then immediately activated his emergency lights, drove the police vehicle diagonally from the right lane into the left lane, "slowed and stopped traffic," then parked in the left lane. Parella further explained that he "saw what was going on [and that he] stopped the traffic because there was going to be a fatality." He stated that all eastbound non-police vehicles "were abiding by [his] emergency lights." While he does not recall whether he activated the vehicle's siren, he stated that neither he nor Ingald deactivated their vehicle's flashing lights prior to exiting their vehicle to pursue the suspect on foot. Detective Parella testified that a concrete barrier separated the eastbound and westbound lanes of the Southern State Parkway, and that there was a shoulder of only "a few inches" between the concrete barrier and the solid painted line delineating the edge of the left lane where he parked.
Parella testified that while assisting other SCPD officers in their foot pursuit of the suspect, he heard a "bang," and at some point realized that his police vehicle had been struck by another vehicle. He stated that he and Ingald soon returned to the area where their vehicle had been parked, observed that plaintiff's vehicle had collided with it, and immediately rendered aid to plaintiff.
James Rafferty testified that he is currently employed as a lieutenant with the SCPD, that he witnessed the subject accident, and that he generated a "supervisor complaint" form in respect thereto. He indicated that with regard to Parella, the driver of the police vehicle struck in the rear by plaintiff's vehicle, there was a breach of SCPD protocol. Upon questioning, Rafferty stated that while it was appropriate for Parella to park his police vehicle in the left lane of the Southern State Parkway with its lights activated while pursuing a suspect on foot, he should not have left the vehicle "unsecured," meaning unlocked and left running unattended, for such a long period of time.
A document entitled "Police Department County of Suffolk, New York Internal Correspondence" and drafted by Rafferty as the investigating supervisor, contains a finding that the accident in question was "preventable." In a section of the form allowing explanation for such finding, Rafferty stated, "The operator parked marked unit 1-10 in the left lane of the Parkway unattended, with emergency lights activated without a clear purpose for doing so."
A police officer's conduct in pursuing a suspected lawbreaker may not form the basis of civil liability to an injured third party unless the officer acted with reckless disregard for the safety of others ( Alexander v City of New York , 176 AD3d 659, 107 NYS3d 688, 689 [2d Dept 2019] ; see Vehicle and Traffic Law § 1104 [e] ). Proving an officer acted with reckless disregard "requires evidence that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome" ( Saarinen v Kerr , 84 NY2d 494, 501, 620 NYS2d 297 [1994] [internal quotation marks omitted] ). Vehicle and Traffic Law § 1104 provides that "[t]he driver of an authorized emergency vehicle, when involved in an emergency operation, may ... [s]top, stand or park irrespective of the provisions of [the Vehicle and Traffic Law]." Every police vehicle is an "authorized emergency vehicle" (see Vehicle and Traffic Law § 101 ).
Here, while there can be little doubt of the reasonableness of defendant Parella's use of the patrol car to slow traffic in order to allow the police officers who were then pursuing the fleeing suspect to cross the eastbound lanes of the parkway more safely, whether he and Officer Ingald were, and continued to be, engaged in an "emergency operation" that justified leaving the patrol car stopped in the left lane of a busy parkway for as long as they did after both officers joined in the pursuit of the suspect, and whether doing so constituted "reckless disregard for the safety of others" ( Saarinen v Kerr , supra ; Alexander v City of New York , supra ) involve issues of fact that cannot be resolved on the current record. Likewise, whether Murray was negligent in failing to see and to avoid colliding with the stopped patrol car and, if so, whether such negligence on Murray's part was the sole proximate or intervening cause of the collision (see Alexander v City of New York , supra , 176 AD3d at 660-61 ; Hain v Jamison , 28 NY3d 524, 533-34 [2016] ; Derdiarian v Felix Contr. Corp. , 51 NY2d 308, 315 [1980] ("Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence") involve issues of fact that cannot be resolved on the current record and, ultimately, must be decided by the trier of fact.
For all of these reasons, the defendants' motion for summary judgment in their favor, dismissing the complaint, and Murray's cross-motion for summary judgment in his favor with respect to the defendants' liability must be denied.
The foregoing constitutes the decision and order of the court.