Opinion
2016-11232 Index Nos. 5874/13 6181/13
07-01-2020
Lawrence WONDERLY, etc., Appellant, v. CITY OF POUGHKEEPSIE, et al., respondents, et al., Defendants. (Action No. 1) Alan DeSantola, etc., et al., Appellants, v. City of Poughkeepsie, et al., respondents, et al., Defendants. (Action No. 2)
Rusk, Waldin, Heppner & Martuscello, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac and Michael H. Zhu ], of counsel), for appellant in Action No. 1, and Gersowitz Libo & Korek (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac and Michael H. Zhu ], of counsel), for appellants in Action No. 2 (one brief filed). McCabe & Mack, LLP, Poughkeepsie, N.Y. (Kimberly Lee Hunt of counsel), for respondents City of Poughkeepsie and City of Poughkeepsie Police Department. James R. McCarl, Montgomery, NY, for defendants Ryan Floryan and Tareebia Q. Wakley (no brief filed).
Rusk, Waldin, Heppner & Martuscello, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac and Michael H. Zhu ], of counsel), for appellant in Action No. 1, and Gersowitz Libo & Korek (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac and Michael H. Zhu ], of counsel), for appellants in Action No. 2 (one brief filed).
McCabe & Mack, LLP, Poughkeepsie, N.Y. (Kimberly Lee Hunt of counsel), for respondents City of Poughkeepsie and City of Poughkeepsie Police Department.
James R. McCarl, Montgomery, NY, for defendants Ryan Floryan and Tareebia Q. Wakley (no brief filed).
ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, SHERI S. ROMAN, JEFFREY A. COHEN, JJ.
DECISION & ORDER In two related actions to recover damages for personal injuries and wrongful death, etc., the plaintiff in Action No. 1 and the plaintiffs in Action No. 2 separately appeal from an amended order of the Supreme Court, Dutchess County (James W. Hubert, J.), dated September 29, 2016. The amended order, insofar as appealed from, granted that branch of the motion of the defendants City of Poughkeepsie and City of Poughkeepsie Police Department which was for summary judgment dismissing the complaints insofar as asserted against them.
ORDERED that the amended order is affirmed insofar as appealed from, with one bill of costs.
On August 1, 2012, police officers employed by the defendant City of Poughkeepsie Police Department, while driving in a police car, attempted to pull over a vehicle driven by the defendant Ryan Floryan, who sped away. The police followed Floryan's vehicle, which struck another vehicle at a high rate of speed when Floryan went through a red light. The collision killed Shawn E. Wonderly and Patricia Wonderly, and injured their two children. The plaintiff in Action No. 1 and the plaintiffs in Action No. 2, representatives of the Wonderly family members, commenced separate actions against, among others, the City of Poughkeepsie and the City of Poughkeepsie Police Department (hereinafter together the municipal defendants) to recover damages for personal injuries and wrongful death. The municipal defendants moved, inter alia, for summary judgment dismissing the complaints insofar as asserted against them. In an amended order dated September 29, 2016, the Supreme Court granted that branch of the municipal defendants' motion which was for summary judgment dismissing the complaints insofar as asserted against them. The plaintiff in Action No. 1 and the plaintiffs in Action No. 2 separately appeal.
Summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" ( CPLR 3212[b] ). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; see Ayers v. City of Mount Vernon, 176 A.D.3d 766, 769, 110 N.Y.S.3d 43 ). Once the movant makes a prime facie showing that it is entitled to judgment as a matter of law, the burden shifts to the nonmovant to demonstrate the existence of factual issues requiring trial (see Ayers v. City of Mount Vernon, 176 A.D.3d at 769, 110 N.Y.S.3d 43 ; Kaluga v. Korytowsky, 269 A.D.2d 566, 566, 704 N.Y.S.2d 507 ). Conclusory assertions are insufficient to demonstrate the existence of any material issues of fact (see Ayotte v. Gervasio, 81 N.Y.2d 1062, 1062, 601 N.Y.S.2d 463, 619 N.E.2d 400 ).
" Vehicle and Traffic Law § 1104 qualifiedly exempts drivers of emergency vehicles from certain traffic laws when they are involved in an emergency operation, and precludes the imposition of liability for otherwise privileged conduct except where the driver acted in reckless disregard for the safety of others" ( Thomas v. City of New York, 172 A.D.3d 1132, 1133, 100 N.Y.S.3d 318 ; see Saarinen v. Kerr, 84 N.Y.2d 494, 497, 620 N.Y.S.2d 297, 644 N.E.2d 988 ). This "reckless disregard" standard requires evidence that the officer 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 N.Y.2d 494, 501, 620 N.Y.S.2d 297, 644 N.E.2d 988 [internal quotation marks omitted]; see Alexander v. City of New York, 176 A.D.3d 659, 660, 107 N.Y.S.3d 688 ; Quintana v. Wallace, 95 A.D.3d 1287, 1288, 945 N.Y.S.2d 366 ). Here, the municipal defendants, in moving for summary judgment, established, prima facie, that the police officers did not act in reckless disregard for the safety of others in commencing, conducting, or failing to terminate their pursuit of Floryan's vehicle prior to Floryan's decision to abruptly accelerate his vehicle to an excessive speed and run through a red light (see Saarinen v. Kerr, 84 N.Y.2d at 501, 620 N.Y.S.2d 297, 644 N.E.2d 988 ; Alexander v. City of New York, 176 A.D.3d at 660–661, 107 N.Y.S.3d 688 ; Thomas v. City of New York, 172 A.D.3d at 1133, 100 N.Y.S.3d 318 ; Daly v. County of Westchester, 63 A.D.3d 988, 989, 882 N.Y.S.2d 209 ; Nurse v. City of New York, 56 A.D.3d 442, 443, 867 N.Y.S.2d 486 ; cf. Foster v. Suffolk County Police Dept., 137 A.D.3d 855, 856, 26 N.Y.S.3d 781 ; Quintana v. Wallace, 95 A.D.3d at 1288, 945 N.Y.S.2d 366 ). Where, as here, the police officers attempted nothing more dangerous than to activate their emergency lights and siren in an attempt to bring Floryan's speeding vehicle to a safe stop at a red light intersection, such actions created no known or obvious risks to other motorists, to Floryan, or to the police officers, and such actions were not "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 [w]as done so with conscious indifference to the outcome" ( Saarinen v. Kerr, 84 N.Y.2d at 501, 620 N.Y.S.2d 297, 644 N.E.2d 988 ).
In opposition, the plaintiffs failed to raise a triable issue of fact (see Alexander v. City of New York, 176 A.D.3d at 660–661, 107 N.Y.S.3d 688 ; Thomas v. City of New York, 172 A.D.3d at 1133–1134, 100 N.Y.S.3d 318 ; Daly v. County of Westchester, 63 A.D.3d at 989, 882 N.Y.S.2d 209 ; Nurse v. City of New York, 56 A.D.3d at 443, 867 N.Y.S.2d 486 ; Shephard v. City of New York, 39 A.D.3d 842, 843, 835 N.Y.S.2d 297 ). The conclusory and speculative conclusions set forth in the affidavit of the plaintiffs' expert witness, and the excerpts from the City of Poughkeepsie Police Department Policy and Procedures manual furnished therewith, did not raise triable issues of fact requiring the denial of summary judgment (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Bruno v. T–Mobile USA, Inc., 176 A.D.3d 1160, 1162, 113 N.Y.S.3d 104 ; Strickland v. Long Is. Rail Rd., 175 A.D.3d 635, 636, 107 N.Y.S.3d 418 ; see also Martinez v. City of Rochester, 164 A.D.3d 1655, 1656, 84 N.Y.S.3d 652 ; Turini v. County of Suffolk, 8 A.D.3d 260, 262, 778 N.Y.S.2d 66 ; Teitelbaum v. City of New York, 300 A.D.2d 649, 650, 752 N.Y.S.2d 705 ).
Accordingly, we agree with the Supreme Court's determination to grant that branch of the municipal defendants' motion which was for summary judgment dismissing the complaints insofar as asserted against them.
The parties' remaining contentions need not be reached in light of our determination.
SCHEINKMAN, P.J., RIVERA, ROMAN and COHEN, JJ., concur.