Opinion
10-30-2014
Danny YACOUB, Plaintiff(s), v. NATT LEASING, INC., Boubacar Keita, and the City of New York, Defendant(s).
Decolator, Cohen & DiPrisco, LLP, Attorney for Plaintiff. Baker, McVoy, Morrissey & Moskovits, PC, Attorney for Defendants Natt Leasing, Inc. and Boubacar Keita. New York City Law Department, Attorney for the City.
Decolator, Cohen & DiPrisco, LLP, Attorney for Plaintiff.
Baker, McVoy, Morrissey & Moskovits, PC, Attorney for Defendants Natt Leasing, Inc. and Boubacar Keita.
New York City Law Department, Attorney for the City.
Opinion
MITCHELL J. DANZIGER, J.
In this action for alleged personal injuries stemming from a motor vehicle accident, defendant THE CITY OF NEW YORK (The City) moves for an order granting it summary judgment, thereby dismissing this action and all cross-claims asserted against it. Saliently, the City avers that insofar as its negligence, if any, did not proximately cause the instant accident, dismissal of this action and all cross-claims is warranted. Additionally, the City argues that summary judgment with respect to all of plaintiff's common-law negligence claims is warranted on grounds that as a police officer, on duty at the time of the alleged accident, any such claims against the City, plaintiff's employer, are barred by the relevant case law. Plaintiff opposes the City's motion to the extent it seeks summary judgment with respect to his second impact claim. Saliently, plaintiff contends that the City fails to establish prima facie entitlement to summary judgment because the City only endeavors to establish that its negligence, if any, was not the proximate cause of the accident, but utterly fails to argue, let alone tender evidence establishing that it provided plaintiff with a safe vehicle within which to work; such failure comprising the claim against the City, namely that it failed to provide plaintiff with a safe vehicle, which resulted in the enhancement and aggravation of plaintiff's injuries. Defendants NATT LEASING, INC. (Natt) and BOUBACAR KEITA (Keita) oppose the City's motion on grounds identical to those asserted by plaintiff.
For the reasons that follow hereinafter, the City's motion is granted, in part.
The instant action is for alleged personal injuries stemming from a motor vehicle accident. The complaint alleges that on November 4, 2010, plaintiff while operating a vehicle owned by the City, came into contact with a vehicle owned by Nat and operated by Keita on Morris Avenue near its intersection with East 164th Street, Bronx, NY. Plaintiff alleges that Nat and Keita were negligent in the operation of their vehicle, said negligence causing this accident and resulting injuries. Plaintiff also alleges that the City failed to provide proper padding for the interior of its vehicle, namely on a computer console located therein. Such failure, plaintiff alleges, constituting negligence in that it enhanced plaintiff's injury when his person came into contact with the console. As a result of the foregoing, plaintiff alleges that the City violated Section 205–e of the General Municipal Law in that it failed to comply with Labor Law § 27–a, requiring it to provide plaintiff with a safe place to work and that the City was generally negligent in failing to provide plaintiff with a crashworthy vehicle, namely by failing to provide proper padding for the interior of its vehicle.
The City's motion seeking summary judgment on Natt and Keita's cross-claims for contribution and indemnification is granted inasmuch as its evidence establishes that by impacting plaintiff's vehicle in the rear, Nat and Keita were negligent, which negligence proximately caused of this accident.
Notably, the City fails to annex a complete copy of the pleadings, which is, of course fatal, since it is well settled that the failure to annex the pleadings on a motion for summary judgment mandates denial of the motion (Weinstein v. Gindi, 92 AD3d 526, 539 [1st Dept 2012] ; Wilder v. Heller, 24 AD3d 433, 434 [2d Dept 2005] ; Hamilton v. City of New York, 262 A.D.2d 283, 283 [2n Dept 1999] ; Lawlor v. County of Nassau, 166 A.D.2d 692, 692 [2d Dept 1990] ). However, inasmuch as no objection is raised and parties are free to chart their own course (Misicki v. Caradonna, 12 NY3d 511, 519 [2009] [“We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made”] ), the Court decides the motion on the merits.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v. DiStefano, 16 AD3d 637, 638 [2d Dept 2005] ; Peskin v. New York City Transit Authority, 304 A.D.2d 634, 634 [2d Dept 2003] ). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v. Bacchus, 282 A.D.2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v. City of New York, 67 AD3d 21, 25 [1st Dept 2009] ).
Once a movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman, at 562). It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. As noted by the Court of Appeals,
[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case
(Friends of Animals v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 1067–1068 [1979] [Internal citations omitted] ). Accordingly, generally, the opponent of a motion for summary judgment who seeks to have the court consider inadmissible evidence must proffer an excuse for failing to submit evidence in inadmissible form (Johnson v. Phillips, 261 A.D.2d 269, 270 [1st Dept 1999].
Moreover, when deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman (278 A.D.2d 811, 811 [4th Dept 2000] ), Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial (see also Yaziciyan v. Blancato, 267 A.D.2d 152, 152 [1st Dept 1999] ; Perez v. Bronx Park Associates, 285 A.D.2d 402, 404 [1st Dept 2001] ). Accordingly, the Court's function when determining a motion for summary judgment is issue finding not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404 [1957] ). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 231 [1978] ). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v. Goodson, 8 N.Y.2d 8, 12 [1960] ).
In the absence of evidence to the contrary, a defendant who establishes that he was not negligent in the operation of his motor vehicle is entitled to summary judgment (Dinham v. Wagner, 48 AD3d 349, 350 [1st Dept 2008 [Court held that defendant established prima facie entitlement to summary judgment when she tendered evidence evincing that she was not at fault for the accident therein and could not have avoided the same.]; Cerda v. Parsley, 273 A.D.2d 339, 339 [2d Dept 2000] [Defendants were entitled to summary judgment because the evidence presented established that defendant operator was not negligent in the operation of defendants.] ). Alternatively, a defendant can establish prima facie entitlement to summary judgment by demonstrating that the plaintiff was negligent in the operation of his/her vehicle and that said negligence was the sole proximate cause of the accident (Espinoza v. Loor, 299 A.D.2d 167, 168 [2d Dept 2002] [Defendant “made out a prima facie case that the accident resulted solely from (plaintiff's) negligence.”] ); Borges v. Zukowski, 22 AD3d 439, 439 [2d Dept 2005] ).
It is well settled that a rear-end collision with a stopped vehicle is prima facie evidence of negligence on the part of the operator of the second, offending, and rear-ending vehicle (Carhuayano v. J & R Hacking, 28 AD3d 413, 414 [2d Dept 2006] ; Mitchell v. Gonzalez, 269 A.D.2d 250, 251 [1st Dept 2000] ; Johnson v. Phillips, 261 A.D.2d 269, 271 [1st Dept 1999] ; Danza v. Longieliere, 256 A.D.2d 434, 435 [2nd Dept 1998] ). In order to rebut the presumption of negligence, the operator of the rear-ending vehicle is required provide a cognizable non-negligent excuse (Carhuayano at 414; Johnson at 271; Mitchell at 251). Accordingly, a rear-end collision, when one of the vehicles is stopped, creates a prima facie case of liability with respect to the operator of the rear-ending vehicle (Edney v. Metropolitan Suburban Bus Authority, 178 A.D.2d 398, 399 [2d Dept 1991] ). A failure by the operator of the offending vehicle to rebut the finding of negligence with admissible evidence requires judgment in favor of the other vehicle (Grimes–Carrion v. Carroll, 13 AD3d 125, 126 [1st Dept 2004] ; Bendiik v. Dybowski, 227 A.D.2d 228, 228 [1st Dept 1996] ).
The same is true when an accident occurs as a vehicle, coming to stop and slowing, is struck in the rear (Chepel v. Meyers, 306 A.D.2d 235, 237 [2d Dept 2003] ; Power v. Hupart, 260 A.D.2d 458 [2d Dept 1999] ).
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While in the Second Department a sudden stop by the vehicle ahead or unavoidable skidding on a wet surface constitute non-negligent explanations sufficient to rebut the presumption of negligence (Carhuayano at 414; Chepel at 237; Filippazzo at 419; Power at 458), in the First Department, a claim that a vehicle stopped short or that the roadway was wet is insufficient to rebut the presumption of negligence (Mitchell at 251 [“It is not a sufficient defense to claim that plaintiffs' vehicle stopped short”]; Danza at 435 [“We find that the defendant's testimony to the effect that the accident was caused by the plaintiffs' sudden stop was insufficient to rebut the presumption that he was negligent”] ).
Here, the City submits plaintiff's 50–h hearing transcript, wherein he testified that on November 4, 2010, while employed as a New York City Police Officer he was involved in a motor vehicle accident within a police vehicle. Specifically, plaintiff testified that he and his partner were double-parked on Morris Avenue near its intersection with East 164th Street, having just pulled over a vehicle for a traffic infraction. As plaintiff sat in his car running that motorist's information on his vehicle's computer console, which was located near his knee, his vehicle was impacted in the rear by another vehicle. As a result of the impact, plaintiff's knee slid under and came into contact with the computer console. Plaintiff later learned that he had been impacted by another vehicle, which had been driven by an intoxicated driver.
Based on the foregoing, the City establishes prima facie entitlement to summary judgment on the issue of liability with respect to the cause of the instant accident. As noted above, a defendant who establishes that he was not negligent in the operation of his motor vehicle is entitled to summary judgment (Dinham at 350; Cerda at 339; Espinoza at 168; Borges at 439). To the extent that the evidence demonstrates that at the time of the alleged accident, plaintiff, the operator of the police vehicle was doing nothing beyond sitting in his stopped vehicle, it cannot be said that he was in any way negligent. Since with respect to the motor vehicle accident, the City's liability, as owner of a vehicle, is only vicarious pursuant to VTL § 388, the City establishes that it was not negligent with respect to the happening of the instant accident. Thus, the City establishes the absence of liability for the first impact and inasmuch as plaintiff testified that he was impacted in the rear by Natt and Keita's vehicle, establishes that they were rebuttably negligent and the proximate cause of the instant accident (Carhuayano at 414; Mitchell at 251; Johnson at 271; Danza at 435).
While the City fails to negate the specific allegations of negligence asserted against it by plaintiff—an issue which will be discussed in detail below—this is no bar to resolving its liability for the happening of the instant accident—the collision-since it is clear that those allegations, namely the failure to provide padding—such failure enhancing plaintiff's injuries—were not the proximate cause of the instant accident.
It is well settled that proximate cause is an essential element to liability, and accordingly, unless both negligence and proximate causation are established, there can be no finding of liability against a defendant (Sheehan v. City of New York, 40 N.Y.2d 496, 501 [1976] ; Lee v. New York City Housing Authority, 25 AD3d 214, 219 [1st Dept 2005] ; Lynn v. Lynn, 216 A.D.2d 194, 195 [1st Dept 1995] ). Proximate cause means the substantial cause of the events which produced the injury claimed (Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 314 [1980] ; Lynn at 195). While in establishing proximate cause, a party is not required to eliminate every other possible cause of an accident (Bernstein v. City of New York, 69 N.Y.2d 1020, 1022 [1987] ; Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 7 [1938] ), proximate cause must nevertheless be conclusively established and cannot be based on speculation (Bernstein at 1022; Teplitskaya v. 3096 Owners Corp., 289 A.D.2d 477, 478 [2d Dept 2001] ; Smith v. Wisch, 77 A.D.2d 619, 620 [2d Dept 1980] ). Accordingly, “[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury” (Ingersoll at 7; Bernstein at 1021; Lynn at 195).
Thus, to recover, in addition to establishing defendant's negligence, a plaintiff is required to demonstrate that the defendant's negligence was the proximate cause of the accident and the injuries claimed (Lynn at 195), or at the very least, a plaintiff is required to establish facts and conditions from which defendant's negligence and an accident's causation may be reasonably inferred (Ingersoll at 7). When a plaintiff fails to establish the cause of an accident and multiple causes can be attributed to the accident claimed, any determination as to said accidents cause would be nothing less than speculation and, thus, plaintiff fails to establish that a defendant's negligence proximately caused the accident (Teplitskaya at 478). In Teplitskaya, the court granted summary judgment in defendant's favor when the evidence as to what caused plaintiff's fall was nothing short of speculation (id. at 478 ). Specifically, defendant established prima facie entitlement to summary judgment by demonstrating that insofar as plaintiff died and could not state what caused his fall, any assertion that his fall was caused by defendant's negligence was speculative (id. at 477–478 ). Because plaintiff's evidence as to causation came from another person who found plaintiff surrounded by paint chips after his fall, the court ruled that any attempt to attribute the fall to the paint chips, and thus, to defendant's negligence, was speculative since it was just as likely that plaintiff could have fallen for a host of other reasons totally unrelated to the paint chips (id. at 478 ).
While it is true that where varying inferences as to causation are possible, resolution of the issue of proximate causation is a question for the jury (Ernest v. Red Creek Cent. School Dist., 93 N.Y.2d 664, 674 [1999] ), it is equally well settled that “[w]here the evidence as to the cause of the accident which injured plaintiff is undisputed, the question as to whether any act or omission of the defendant was a proximate cause thereof is one for the court and not for the jury” (Rivera v. City of New York, 11 N.Y.2d 856, 857 [1962] ; Dattilo v. Best Transp. Inc., 79 AD3d 432, 432 [1st Dept 2010] ; D'Avilar v. Folks Elec. Inc., 67 AD3d 472, 472 [1st Dept 2009] ).
The law draws a distinction between a condition that merely sets the occasion for and facilitated an accident and an act that is a proximate cause of the accident; the latter and not the former giving rise to liability (Sheehan at 503; Lee at 219). Stated differently, if a defendant's negligence is not the immediate effective cause of an accident, it cannot be said, that such negligence proximately caused the accident (Lee at 219). In Lee, for example, plaintiff was injured when, while playing ball, the ball went through a hole in a negligently maintained fence by defendant, the owner of the property and the fence surrounding it (id. at 215). Plaintiff went to fetch the ball, not through the hole but after walking around the fence and as he retrieved the ball, plaintiff was hit by a car (id. at 215). In granting summary judgment in favor of the appellant—the defendant/owner of the fence—the court concluded that even though defendant was negligent in maintaining the fence, such that it did not prevent the ball from going through a hole thereat, said negligence was not the proximate cause of the accident (id. at 219–220). Specifically, the court found that the proximate cause of plaintiff's accident was the independent intervening acts of the driver of the vehicle which struck plaintiff, such independent intervening acts breaking the causal connection between a defendant's negligence and an accident (id. at 220).
In Sheehan, the court came to a similar conclusion. In that case, plaintiff sued after being injured while a passenger on defendants' bus, alleging that the bus stopped in the middle of the street rather than the designated bus stop, that such act constituted negligence, and that such negligence proximately caused the accident which ensued when co-defendant's truck, whose brakes failed, struck the bus in the rear (id. 500). In finding that a directed verdict in favor of defendants the bus owner and operator was warranted the Court of Appeals noted that the bus' location at the time of the accident, even though not at a bus stop—and which constituted negligence—was not the proximate cause of the accident, and that instead, it was the negligence of the other vehicle—defendant truck—which caused the accident (id. at 502–503). Specifically, the court stated
[a]Assuming the designated stop was available for the bus's use, if it had in fact stopped there and, having discharged or boarded its passengers, pulled back into the traveling lane before proceeding across the intersection, it would, properly, have been in exactly the same position at which it found itself when it was hit. Or, if observing no prospective passengers in the stop and having none who wished to alight at that corner, the bus driver had decided not to go through the proper practice of pulling in and out of the stop, but, preparatory to crossing, had merely stopped in the traveling lane at the corner before doing so, his bus would have been in precisely the same position. In short, the bus at the time of the accident appears merely to have been at one point in the street where it had a right to be (the traveling lane) rather than at another point in the street where it had a right to be (the bus stop). The result of the sanitation truck's brake failure would have been no different, if, perchance, a pedestrian or a vehicle other than the bus had been using the street at that point at that time and had instead become the target of the truck's faulty brakes ... In addition, it appears quite clear that, if the bus's stop in the traveled lane could, on any view of the circumstances here, be regarded as a proximate cause of the accident, the failure of the truck's brakes might have been an independent, supervening cause. Though, where either of two independent acts of negligence may be found to be concurring, that is, direct causes of an accident, the perpetrator of either or both may be found responsible for the whole harm incurred, when such an intervening cause interrupts the natural sequence of events, turns aside their course, prevents the natural and probable result of the original act or omission, and produces a different result that could not have been reasonably 836 anticipated, it will prevent a recovery on account of the act or omission of the original wrongdoer
(id. at 502–504 [internal citations and quotation marks omitted] )
Here, the evidence tendered by the City establishes that it was Natt and Keita's negligence that caused the accident, rather than any of the City's alleged negligence. Thus, proximate cause becomes an issue of law to be decided by this Court (Rivera at 857; Dattilo at 432; D'Avilar at 472), which it decides in the City's favor. Nothing submitted by the other parties raises an issue of fact with respect to the City's liability for the cause of the instant accident and its motion for summary judgment on that issue is granted.
The City's motion for summary judgment with respect to plaintiff's claims of negligence—namely that in failing to provide a safe vehicle with adequate padding, the City was negligent, failing to provide a crashworthy vehicle, which negligence enhanced plaintiff's injuries—is denied since with respect to the common law claims of negligence asserted against the City, it fails to establish that the vehicle provided to plaintiff was reasonably safe so as to negate plaintiff's allegations.
Preliminarily, it bears noting that as against the City, plaintiff alleges a second impact theory of liability, namely that the City's negligence did not cause the accident but merely enhanced or aggravated it. The proponent of this theory generally alleges that the negligent design or manufacture of a product results in unreasonably latent defects, which enhance or aggravate injuries having independent causes (Bolm v. Triumph Corp., 33 N.Y.2d 151, 158 [1973] ; Cornier v. Spagna, 101 A.D.2d 141, 146–147 [1st Dept 1984] ). Thus, here plaintiff alleges that Natt Keita caused the accident, but that the City, in failing to provide a crashworhty vehicle, enhanced and aggravated his injury.
In 1988, in Santangelo v. State of New York (71 N.Y.2d 393 [1988] ), the Court of Appeals extended the applicability of the then well settled common law rule that firefighters injured while fighting fires could not “recover against the property owners or occupants whose negligence in maintaining the premises occasioned the fires” (id. at 396 ), to police officers who were injured while performing their duties (id. at 395 ). Specifically, the court held that “[l]ike firefighters, police are the experts engaged, trained and compensated by the public to deal on its behalf with emergencies and hazards often created by negligence” (id. at 397 ), and, thus, generally cannot recover damages for negligence in the very situations that create the occasion for their services (id. ). The court extended the bar on common law negligence claims so as to preclude an action against the state, who in Santangelo, employed the plaintiff (id. at 395 ). In Cooper v. City of New York (81 N.Y.2d 584 [1993] ), the court once again reiterated its bar against common law negligence claims by police officers against their municipal employers for injuries sustained while “performing a function endowed with the special risks inherent in the duties of a police officer (id. at 589 ). The court again rationalized its holding, noting that individuals who elect to join the uniformed services do so with knowledge of the dangers attendant upon those occupations and the distinct possibility that they might be hurt in the course of their employment. It is precisely because being a police officer is so hazardous that the Legislature has provided for added benefits to those injured in the line of duty (id. at 590 [internal quotation marks omitted) ] ). The court, in rejecting an exception which would allow a suit against a municipality for an injury caused to an officer by acts of negligence separate and distinct from the circumstances requiring a police officer's presence at the scene of an accident, made clear that whether liability for common law claims will lie turns on “whether the injury sustained is related to the particular dangers which police officers are expected to assume as part of their duties,” rather than “the degree of separation between the negligent act directly causing the injury and the act which occasioned the police officer's services” (id. at 590 ).
After the holding in Santangelo, the legislature saw fit to partially abrogate the court's holding in Santangelo and Cooper by enacting General Obligations Law § 11–106 and General Municipal Law § 205–e. The first, codifying the bar against common law claims against a municipal employer for injuries sustained by a police officers within the scope, but allowing suits against third parties. The second, however, creating a statutory right of action against a municipal employer for injuries sustained by a police officer in the course of his employment. Accordingly, GOL § 11–106, creates a right of action against third parties for “any injury, disease or death while in the lawful discharge of his official duties and that injury, disease or death is proximately caused by the neglect, willful omission, or intentional, willful or culpable conduct of any person or entity,” but bars any common law claims of negligence for such injuries against “that police officer's or firefighter's employer or co-employee” (Brady v. City of New Rochelle, 296 A.D.2d 365, 366 [2d Dept 2002] ; Melendez v. City of New York, 271 A.D.2d 416, 417 [2d Dept 2000] ). GML § 205–e, however, creates a statutory right of action against a municipality for injures sustained by a police officer and does so “regardless of whether the injury or death is caused by the violation of a provision which codifies a common-law duty and regardless of whether the injury or death is caused by the violation of a provision prohibiting activities or conditions which increase the dangers inherent in the work of any officer, member, agent or employee of any police department” (Florio v. City of New York, 226 A.D.2d 148, 148–149 [1st Dept 1996] ; Sikes v. Reliance Federal Savings, 234 A.D.2d 446, 447 [2d Dept 1996] ). Liability under GML § 205–e requires that a plaintiff identify the particular statute or ordinance the municipal defendant is alleged to have violated within the pleadings (Balsamo v. City of New York, 287 A.D.2d 22, 25 [2d Dept 2001] ), and the predicate statute or ordinance must promulgate a particularized mandate or a clear legal duty (id. at 26 ; Gonzalez v. Iocovello, 93 N.Y.2d 539, 551 [1999] ).
Here, the City's evidence establishes that the instant accident occurred while plaintiff was on duty and in the midst of a traffic stop. As in Cooper, where the plaintiff, a police officer, could not recover against the City for injuries sustained as a result of a motor vehicle accident while responding to a call, plaintiff here, was injured while performing “function endowed with the special risks inherent in the duties of a police officer” (id . at 589). However, to the extent that the allegations here are that the City failed to provide plaintiff with a crashworthy vehicle, such failure enhancing plaintiff's injury, the City could be liable under an exception to the rule promulgated by the case law and GOL § 11–106, namely that a municipality remains liable for an injury to a police officer if the same results from faulty equipment provided by the municipality (Martell v. City of Utica, 184 A.D.2d 1009, 1010 [4th Dept 1992] [“Summary judgment was properly denied in part with respect to plaintiffs' (a firefighter) allegations that their injuries resulted from defective protective equipment (provided by the municipal employer).”]; Lyall v. City of New York, 228 A.D.2d 566, 567 [2d Dept 1996] [Verdict against municipal defendant upheld on grounds that firefighter was injured while fighting a fire because the uniform he was provided was inadequate.] ). On this record, then, the City, for purposes of summary judgment would have to demonstrate that the equipment provided-here, the vehicle and computer console therein-were reasonably safe-such that the exception to the rule barring common law negligence claims for injuries to police officers would not apply. In its moving papers, the City utterly fails to make such argument, let alone proffer evidence supporting the same. Based on the foregoing, while it is true that “the law only requires employers to furnish equipment that is reasonably safe, in good repair and suitable for its intended use [and that] [a]n employer does not owe an employee the legal duty of furnishing the best-known appliances to protect such employee against injury (McCormack v. City of New York, 80 N.Y.2d 808, 810 [1992] [internal citations and quotation marks omitted] ), this body of law doesn't avail the City either. The City simply submits no evidence on the relative safety of plaintiff's vehicle. Thus, the City fails to establish prima facie entitlement to summary judgment with respect to plaintiff's claims sounding in common law negligence.
For the reasons just discussed, the City similarly fails to establish prima facie entitlement to summary judgment with respect to plaintiff's claim that it violated GML § 205–e because in failing to provide plaintiff with a crashworhty vehicle, the City violated Labor Law 27–a. It is clear that the law recognizes a cause of action pursuant to GML § 205–e premised on a violation of Labor Law § 27–a under circumstances virtually identical to the one at bar. In Balsamo, plaintiff a police officer sued the City asserting that it violated GML § 205–e and Labor Law 27–a after he was injured while within his police vehicle (287 A.D.2d 22, 23–24 ). Specifically, plaintiff's vehicle was involved in a collision while responding to a call and upon impact, he hit his knee against the unpadded computer console therein (id. ). In denying the City's motion for summary judgment, the Appellate Division held that the allegations therein could “constitute a sufficient predicate for a claim pursuant to General Municipal Law § 205–e which is based on an allegation of a workplace safety violation [namely, Labor Law § 27–a ]” (id. at 28 ).
Here, as discussed above, the City's failure to establish that the vehicle at issue was reasonably safe results in its failure to establish that it did not violate Labor Law § 27–a and, thus, GML § 205–e. Accordingly, the City fails to establish prima facie entitlement to summary judgment with respect to plaintiff's statutory claims and, therefore, the Court need not consider plaintiff's opposition papers nor his evidentiary submissions (Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 [1985] ). It is hereby
ORDERED that the cross claims asserted by Natt and Keita against the City be dismissed with prejudice. It is further
ORDERED that plaintiff serve a copy of this Order with Notice of Entry upon all parties within thirty days (30) hereof.