Opinion
No. 7471/2013.
06-02-2015
Salim RANDALL, Plaintiff, v. Charlene MORAND, Defendant.
Opinion
This is a personal injury action in which plaintiff, Salim Randall, a police officer with the New York Police Department, seeks to recover damages for injuries he allegedly sustained when he was injured in the course of making an arrest. On December 15, 2012, the plaintiff, along with his partner, effected a traffic stop of the defendant, Charlene Morand, on Bergen Street at the intersection of Bedford Avenue, Kings County, New York. The plaintiff alleges that he was injured in the line of duty when he was kicked by the defendant during what he describes as a lawful arrest. Plaintiff alleges that as a result of the incident he sustained, inter alia, a torn meniscus of the left knee requiring arthroscopic surgery.
The plaintiff commenced this action by filing a summons and complaint on April 17, 2013. The complaint asserts a cause of action for negligence alleging that the plaintiff was injured while attempting to arrest the defendant when the defendant's vehicle struck the plaintiff. The complaint alleges that the defendant violated Penal Law §§ 205.30 (resisting arrest), 120.20 (reckless endangerment in the second degree), and 120.00(2) (assault in the third degree). The complaint states that the plaintiff was injured when the defendant resisted arrest, recklessly engaged in conduct which created a substantial risk of serious physical injury to the plaintiff, recklessly caused physical injury to the plaintiff, and caused her vehicle to strike the plaintiff.
The complaint also alleges a cause of action pursuant to GML 205–e in that the plaintiff was injured because the defendant violated certain Vehicle and Traffic Law provisions. The plaintiff's supplemental bill of particulars, dated December 22, 2014, alleges that the defendant violated Vehicle and Traffic Law §§ 375 (12–a)(a)–(b) [driving with heavily tinted windows) and 402(1)(b) [obscured license plate], which violations were indirectly related to the plaintiff's injuries.
The plaintiff's bill of particulars alleges that the defendant was negligent in attempting to prevent a police officer from effecting a lawful arrest, failed to obey the lawful orders of a police officer, recklessly engaged in conduct creating a substantial risk of physical injury to the plaintiff, and caused the defendant's vehicle to strike the plaintiff.
Issue was joined by service of defendant's answer on July 5, 2013. The answer contains an affirmative defense which alleges that the action is barred by General Municipal Law (GML) § 205–e. Plaintiff filed a Note of Issue on September 11, 2014. This matter is presently on the calendar of the Trial Scheduling Part for July 23, 2015.
In his examination before trial taken on June 30, 2014, Police Officer Salim Randall, age 37, states that at the time of the subject incident he was assigned to Brooklyn North Taskforce Anticrime Unit. On December 15, 2012, he was on patrol with his partner in a marked police vehicle. He testified that he stopped the defendant's vehicle at the corner of Bergen Street and Bedford Avenue because he observed that the license plate of the vehicle was covered by a bumper guard and also because the windows were tinted, both violations of the Vehicle and Traffic Law. The police vehicle pulled up behind the defendant's vehicle and the plaintiff approached the defendant's driver side door. The officer asked for her paperwork and she allegedly responded “I am late for work. I don't have time for this shit.” She then showed the officer her identification as a Fire Department EMT and handed over her license and registration. The officer then asked her to roll her window half way down so that he could test the window with his tint meter. His meter showed that the tinting was over the legal limit.
Officer Randall then went back to his vehicle to run defendant's license plate through his computer and to issue a summons for having an obstructed license plate and tinted windows. While he was in the process of writing the summons, the defendant exited her vehicle, approached the window of the police vehicle and began to yell and curse at him. He instructed her to get back into her vehicle and she complied. However, she exited her vehicle again and came back to his vehicle to again yell and curse at him. He again ordered her back into her vehicle. She then exited her vehicle a third time and he told her if she came back again she would be arrested for disorderly conduct. She responded, “you ain't gonna do shit,” at which point Officer Randall stepped out of the police vehicle and advised Ms. Morand that she was under arrest and told her to put her hands behind her back. As he reached for her arm she ran back towards her vehicle.
He chased her back to her car and she sat back down in the driver's seat with her legs hanging out. He grabbed her arm to try to pull her out and she scratched his left hand. She also leaned back in the vehicle and began to kick in an upwards direction with both legs like bicycle kicking. He testified that he was kicked ten to fifteen times in his midsection, groin, and knees. Another officer who responded to the scene, pulled the defendant out of the vehicle and assisted the plaintiff in handcuffing the defendant. Randall then placed the defendant in the police vehicle and drove her to the 77th Precinct. He stated that the defendant's vehicle never struck any part of his body and he never reported that he was struck by her vehicle. He prepared an incident report, an aided card, and filed charges against her. The top charge lodged against her was assault against a police officer. His Sergeant prepared an injured in the line of duty report. He had complained to his sergeant that he injured his left knee. He then sought medical attention at Wycoff Hospital. He received x-rays at the hospital which were negative for fractures. An MRI taken approximately two months later showed a torn meniscus of the left knee.
The examination of Charlene Morand, a certified paramedic and licensed EMT, age 30, was taken on June 30, 2014. She stated that she is employed by the New York City Fire Department Station 57 in Kings County. She was convicted of disorderly conduct as a result of the December 15, 2012 incident. She stated that she had been at her sister's house and was on her way to work when she was pulled over by the plaintiff's police vehicle. She came to a complete stop right before the intersection with Bedford and Bergen. She stated that she was operating an Acura that was leased and had tinted windows. She also had a bumper guard that covered the license plate. She stated that the plaintiff approached her driver's side window. She showed him her EMT identification and handed him her license, registration and insurance card. She denied that she cursed or yelled at him but she did tell him she was going to be late for work. She also got out of the vehicle to put the bumper guard away. She stated the police officer approached her and told her not to get out of the vehicle. She stated that she got back in the vehicle and closed the door. She stated that the officer threatened to arrest her and then opened her door and pulled her by the wrist and twisted her arm, causing a sprained wrist. She stated that she was yanked out of her vehicle and thrown against the car and did not kick him. She stated that she never touched his body with her legs. She stated that she never struck the officer with any portion of her body such as her hands, elbows or knee. She stated that as a result of the arrest she was suspended from her job for 30 days with no pay and restricted from patient care for six months.
The police department line of duty injury report states that “while making a lawful arrest, the defendant intentionally scraped my left hand and kicked my left leg causing lacerations and pain and swelling.”
The defendant now moves for an order pursuant to CPLR 3212(b), granting summary judgment on the issue of liability and dismissing the complaint. In support of the motion, plaintiff submits an affirmation from counsel, Jason M. Bernheimer, Esq; a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; a copy of the plaintiff's line of duty injury report; a copy of the police aided card; and a copy of the transcripts of the examinations before trial of plaintiff, Salim Randall, and defendant, Charlene Morand.
Defendant alleges that the deposition testimony demonstrates that the officer was not struck by and was not contacted by the defendant's motor vehicle as alleged in the complaint and that if he did sustain an injury it was incident to making a lawful arrest. Thus, counsel claims the cause of action for negligence must be dismissed.
Further defendant alleges that the action is barred by General Municipal Law § 205–e in that any statutory violations allegedly violated by the defendant, e.g. Vehicle and Traffic Law equipment violations, were not directly or indirectly a proximate cause of the plaintiff's alleged injuries and did not increase the risks inherent in the police work. Defendant asserts that to the extent Randall claims liability under GML 205–e, the predicate statutory violations, based upon Vehicle and Traffic Law equipment violations, did not cause the injury or increase the risks associated with police work. Pursuant to GML 250–e, a police officer may not recover for injuries sustained due to the increased risk caused by the peculiar nature of police duties of police activity unless the increased risk of police activity results from a statutory violation that proximately caused the injury to the officer.
Thus, counsel argues, the cause of action alleging a violation of GML 250–e must be dismissed as there is no question of fact that the statutory violations, e.g. tinted windows and a blocked license plate were not the proximate cause of the plaintiff's injuries, but rather, were only the occasion which led to the traffic stop. Citing Blake v. City of New York, 109 AD3d 503 [2d Dept.2013], counsel asserts that when a police officer alleges a statutory violation but fails to allege how his injury arose from a recognized hazard related to that statutory violation, the officer does not have a valid claim under GML 250–e. Defendant argues that the obscured license plate violation and tinted windows violation cannot, under the facts of this case, be considered a safety issue for a police officer that increased the risks normally associated with police work. Rather, the claimed injuries were sustained because the defendant allegedly resisted arrest. Further, counsel argues that when an officer is injured in a scuffle during an arrest the GML 205–e claim must fail absent a statutory violation directed at a safety issue that contributed to the arrest because the apprehension of a suspect is a function particularly within the scope of usual police duties (see Wawrzyniak v. Sherk, 170 A.D.2d 972 [4th Dept.1991] ).
In opposition, plaintiff's counsel Joseph L. Decolator, Esq., asserts that GML 205–e claims may be predicated upon the alleged violations of relevant VTL violations (citing Gonzalez v. Iocovello, 93 N.Y.2d 539 [1999] ). Plaintiff asserts, therefore, that pursuant to GML § 205–e there is a question of fact as to whether the VTL sections violated by the defendant, e.g. tinted windows and obscured license plate, had a practical or reasonable connection with the injuries sustained by the plaintiff during the course of making an arrest of the defendant. Counsel argues that the violations which occasioned the need for the police officer's presence at the scene are sufficient to establish liability under GML § 205–e. Counsel contends that the plaintiff need only show that the statutory or code violations played “some part” in bringing about his injuries. Counsel argues that because the VTL violations brought about the need for plaintiff's presence at the location, he has established an indirect and reasonable and practical connection between the VTL violations and the injuries (citing Giuffrida v. Citibank Corp., 100 N.Y.2d 72 [2003] [[the substantial case law that has developed on the subject holds that a plaintiff need only establish a “practical or reasonable connection” between the statutory or regulatory violation and the claimed injury]; Clow v. Fisher, 228 A.D.2d 11 [3rd Dept.1997] [proving that the defendant's violation was an “indirect cause” does not require the same amount of proof as proximate cause in common-law negligence, but requires a practical or reasonable connection between the statutory or regulatory violation and the injury ]; Aldrich v. Sampier, 2 AD3d 1101 [3rd Dept.2003] [GML 205–e cause of action sustained when police officer was injured in an accident while pursuing a defendant for reckless driver as an indirect cause of the injury] ). Thus, plaintiff argues that because the defendant's violations of the VTL “occasioned” the plaintiff's presence at the scene, there is a connection between the violations and the plaintiff's injuries. (Citing Cerati v. Berrios, 61 AD3d 915 [2d Dept.2009 ] [the defendant failed to establish, prima facie, the lack of connection between the statutory violation at issue and the plaintiff's injuries] ).
Upon review of the defendant's motion, the plaintiff's opposition and the defendant's reply thereto, this court finds as follows:
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. The failure to make that showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Mastrangelo v. Manning, 17 AD3d 326 [2nd Dept 2005] ). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ).
Here, the defendant established her prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that there is no evidence in the record that plaintiff's injury was directly or indirectly caused by a violation of either VTL 375 (12–a)(a)–(b) [driving with heavily tinted windows) or 402(1)(b)[obscured license plate] upon which his Municipal Law § 205–a claim is predicated (see Williams v. City of New York, 2 NY3d 352 [2004] ).
In order to assert a claim under GML § 205–e, a plaintiff “must [1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which the police officer was injured, and [3] set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm” (Williams v. City of New York, 2 NY3d 352 [2004] quoting Giuffrida v. Citibank Corp., 100 N.Y.2d 72 [2003] ; also see Gammons v. City of New York, 24 NY3d 562 [2014] ).
To establish a prima facie case under the statute, plaintiff must, in addition to demonstrating violation of relevant statute, ordinance, or regulation, establish practical or reasonable connection between violation and injury to an officer (see Gover v. Mastic Beach Property Owners Association, 57 AD3d 729 [2nd Dept 2008] ; Campbell v. City of New York, 31 AD3d 594 [2d Dept.2006] ; Campagna v. Arleo, 25 AD3d 528 [2d Dept.2006] ; Fahey v.. Serota 23 AD3d 335 [2d Dept.2005] ).
The Court of Appeals has held that, to satisfy the requirement of direct or indirect causation, the plaintiff need only establish a “practical or reasonable connection” between the violation and the plaintiff's injuries (Zanghi v. Niagara Frontier Transp. Commn., 85 N.Y.2d 423 [1995] ; Giuffrida v. Citibank Corp., 100 N.Y.2d 72 [2003] ; Cerati v. Berrios, 61 AD3d 915 [2d Dept.2009] ).
Here, this Court finds that the Vehicle and Traffic Law violations for which the plaintiff was stopped had no practical or reasonable connection to the injuries allegedly sustained by the officer. Although the officer was present at the scene of the incident because he stopped the defendant's vehicle for having excessively tinted windows and an obscured license plate, neither the tinting of the windows nor the covering on the license plate was directly or indirectly connected to the officer's injury. Rather, the injury occurred, according to the officer's testimony, after the vehicle was stopped, after the plaintiff's windows had been rolled down and tested for tinting, and after the defendant refused to obey the officer's lawful commands to remain seated in her vehicle. According to the officer's testimony, the injuries occurred while he scuffled with the defendant in attempting to make the arrest. Thus, the tinting on the windows only occasioned the police stop but had no reasonable connection to the police officer's injury. The officer was injured following the stop while making a lawful arrest for failing to obey the officer's commands. The arrest was not in any way related to the VTL violations as it might have been had the officer been injured because he could not see into the vehicle due to excess tinting.
It has also been held that the apprehension of criminal suspects is a function particularly within the scope of police duties (Wynne v. Tullman, 151 A.D.2d 476 [2d Dept.1989] ). Thus, even giving broad application to the GML 205–e claim, the moving defendant has established her prima facie entitlement to judgment as a matter of law by demonstrating the lack of any “practical or reasonable” connection between the alleged statutory violation and plaintiff's injuries since the tinted windows and obscured license plate did not directly or indirectly cause the police officer to injury his knee. Rather, he was injured in the course of the performing his usual duties (see Cotter v. Pal & Lee Inc., 86 AD3d 46 [1st Dept. Kenavan v. City of New York, 267 A.D.2d 355 [2d Dept.1999] ).
In opposition to defendant's prima facie showing, plaintiff failed to raise a triable issue of fact as to whether there was a practical or reasonable connection between the alleged violations of the Vehicle and Traffic Law and the injuries sustained (see Driscoll v. Tower Assoc., 16 AD3d 311 [1st Dept.2005] ).
Secondly, the cause of action contained in the complaint for negligence due to the negligent operation of the motor vehicle by the defendant is dismissed. It is not disputed that the officer was injured in a scuffle with the defendant and not when the defendant struck him with her vehicle as alleged in the complaint. Thus, the defendant's operation of the vehicle at the time in question was not a proximate cause of the plaintiff's injury.
Accordingly, based on the foregoing, it is hereby,
ORDERED, that the defendant's motion for summary judgment dismissing the plaintiff's complaint in its entirety is granted, and it is further,
ORDERED, that the Clerk may enter judgment accordingly.