New York State Court of Claims

New York State Court of Claims

DALE & GERE v. THE STATE OF NEW YORK, #2002-019-527, Claim No. 98032, Motion No. M-64647


Synopsis


State's motion to amend answer and for an order precluding claimants' from offering certain evidence at trial is granted in part and denied in part; and State's motion for reargument is granted, and upon such reargument, the Court's prior Decision & Order is amended by deleting footnote 5 therefrom which deemed the State's Verified Answer to be amended to include a reliance on Vehicle & Traffic Law 1104.

Case Information

UID:
2002-019-527
Claimant(s):
WANDA DALE & BRENT GERE, Individually and as parents and natural guardian of JESSICA GERE, deceased, as distributees of JESSICA GERE, and as Limited Co-Administrators of the Estate of JESSICA GERE
Claimant short name:
DALE & GERE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98032
Motion number(s):
M-64647
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
WILLIAM M. HIGGINS, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
April 24, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The defendant State of New York (hereinafter "State") moves: (1) for permission to amend its answer to add the affirmative defenses of collateral estoppel and res judicata pursuant to CPLR 3025 and an Order precluding Claimants from offering evidence at trial concerning issues which were previously decided by Supreme Court; and (2) for reargument pursuant to CPLR 2221 and, upon such reargument, the deletion of that portion of this Court's prior Decision and Order which deemed the State's Verified Answer amended to include Vehicle & Traffic Law 1104 as an affirmative defense. Claimants oppose the motion in all respects.


The Court has considered the following papers in connection with this motion:
  1. Decision and Order, Ct Cl., Claim No. 98032, Motion No. M-63714, Lebous, J., filed November 30, 2001.
  2. Notice of Motion No. M-64647, dated January 29, 2002, filed January 31, 2002.
  3. Affirmation of James E. Shoemaker, AAG, dated January 29, 2002.
  4. Memorandum of Law, in support of motion, dated January 29, 2002, with attached exhibits.
  5. Affidavit of William M. Higgins, Esq., in opposition to motion, sworn to February 19, 2002, and filed February 21, 2002.
The facts underlying this matter are contained in greater detail in this Court's prior Decision & Order denying the State's motion for summary judgment. (Dale v State of New York, Ct Cl., November 30, 2001, Lebous, J., Claim No. 98032, Motion No. M-63714). Briefly, this claim arose from a fatal one-car crash on November 1, 1996, following a high-speed police pursuit in which the front seat passenger in the pursued vehicle, 15 year-old Jessica Gere, was killed after said vehicle lost control and flipped end-over-end. The police chase involved three separate State Troop cars operated by State Troopers Mark D. Miller, Robert J. Hodges, and Paul J. Welytok, as well as a fourth police vehicle operated by Village of Wayland Police Officer John M. Adams. The State previously moved for summary judgment asserting, among other things, that the Troopers' conduct did not rise to the level of reckless disregard as a matter of law and that the actions of Adam Kitt, the driver of the fleeing vehicle, were the sole proximate cause of the accident. This Court denied the State's motion for summary judgment finding that questions of fact existed relative to all these issues. It is worth noting at the outset that at no time during the pendency of the prior summary judgment motion did either party advise this Court that an Order had been issued in the companion Supreme Court action involving the Village of Wayland relating to the actions of Village Police Officer John M. Adams, by Acting Supreme Court Justice Hon. Mark H. Dadd dated March 14, 2001 (hereinafter "Supreme Court Order").[1] (Exhibit B to State's Memorandum of Law). This pre-existing Supreme Court Order is the primary focus of this the State's second motion.


1). State's Motion to Amend Verified Answer

The State seeks to amend its Verified Answer to include the affirmative defenses of collateral estoppel and res judicata based upon the Supreme Court Order. It is well-settled that motions to amend pleadings upon leave are directed to the sound discretion of the Court, but that such leave shall be freely given. (CPLR 3025 (b); Murray v City of New York, 43 NY2d 400, 404-405; Uniform Rules for the Court of Claims [22 NYCRR] 206.7 [b]). This does not mean, however, that all such motions should be granted. (Siegel, NY Prac § 237, at 380 [3rd ed]; see also, B (Francis) v B (Mark), 78 Misc 2d 112). Typically, such motions are treated on the procedural basis only without regard to the merits of the underlying proposed amendment. (Siegel, NY Prac § 237, at 380 [3rd ed]). Here, however, the State raises the merits of its proposed amendments by simultaneously seeking an order precluding Claimants from offering evidence at trial relative to these issues. Consequently, the Court will address the merits of the State's proposed affirmative defenses of collateral estoppel and res judicata. Thus, the question squarely before this Court is whether the Supreme Court Order should be given res judicata and/or collateral estoppel effect here where the conduct of State Troopers, as opposed to Village Police Officer Adams, are under scrutiny.[2]


The first step in this analysis is to review the Order from the now dismissed Supreme Court action. Initially, the Court notes that the Claimants here in the Court of Claims matter are identical to the named plaintiffs in the Supreme Court matter and are represented by the same counsel. The difference lies, of course, in the named defendants in each action, with the Village of Wayland (hereinafter "Village") being the named defendant in the Supreme Court matter, and the State of New York being the sole defendant in this Court of Claims matter in accordance with the respective jurisdiction of each court. (Court of Claims Act, §§ 8 & 9). Upon reviewing the substance of said Supreme Court Order, it appears that two issues were addressed therein. The first ruling related to Police Officer Adams' conduct in executing a second moving roadblock near the end of the high-speed chase. Judge Dadd held that "[Officer] Adams exercised caution in positioning his car on the highway and did not pull in front of Kitt so suddenly as to create a risk of a likely collision." (Supreme Court Order, p 3). Based upon this determination the Supreme Court found that the Village "[h]as established as a matter of law that Adams did not act in reckless disregard for the safety of others...." (Supreme Court Order, p 3). The second ruling was Judge Dadd's finding "[t]hat Kitt's own conduct was the proximate cause of the accident [citations omitted]". (Supreme Court Order, p 3). The State argues that these two Supreme Court rulings are identical to the issue pending here and decisive of the claim before this Court and thus entitled to res judicata and/or collateral estoppel effect.


For the doctrine of collateral estoppel to apply, two requirements must be satisfied. The party seeking the benefit of the doctrine must prove: (1) that "[t]he identical issue was necessarily decided in the prior action and is decisive in the present action..."; and (2) "the party to be precluded from relitigating an issue must have had a full and fair opportunity to contest the prior determination." (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664). With collateral estoppel, a stranger to the first action may seek to take advantage of the preclusive effect in a second action (303 Realty Corp. v Albert, 154 AD2d 590), since there need not be an identity of parties in the two actions. (Kowalski v Mohsenin, 38 AD2d 274, 276). The term "defensive use" of collateral estoppel is applicable when, as here, "[a] stranger to the judgment-the defendant in the second action-seeks to preclude a plaintiff from relitigating an issue which such plaintiff had previously litigated and lost against a different defendant." (73A NY Jur 2d, Judgments, § 355). The "[p]arty seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action [citations omitted]." (Kaufman v Lilly & Co., 65 NY2d 449, 456). Accordingly, the State has the burden of establishing the first prong of the analysis, whereupon Claimants must demonstrate the latter.


A. Reckless Disregard

The first ruling in the Supreme Court Order addressed the issue of whether Police Officer Adams' conduct rose to the level of reckless disregard as a matter of law. Here, the issue before this Court is whether the State Troopers' conduct, individually or collectively, rose to the level of reckless disregard. These are two separate and distinct issues. From the Supreme Court Order, it appears that Police Officer Adams' conduct was analyzed in the context of the manner in which he executed the second moving roadblock, without regard to the circumstances leading up to that point.[3] By comparison, a determination relative to the State Troopers conduct will involve an analysis of the continuing nature of the State's pursuit, the failure to terminate the pursuit and alleged violations by the State Troopers of the State Police Field Manual, all of which relate to the time period prior to Police Officer Adams' involvement. As such, the State has not met its burden of establishing an identity of issues between the Supreme Court action and the present claim on the issue of reckless disregard relative to the State Troopers' conduct. In any event, assuming, arguendo, the issues to be identical, the State did not demonstrate that said issue is decisive in the present action. In this Court's view, the absence of reckless disregard on the part of Police Officer Adams is not decisive of this action since it does not prevent a finding of reckless disregard by the State Troopers for their own conduct. Stated another way, the State Troopers conduct could amount to reckless disregard regardless of whether Police Officer Adams' conduct was blameless, negligent or in reckless disregard. (See causation discussion, infra).


That having been said, however, it does appear that the narrow issue of Police Officer Adams' reckless disregard or, more accurately, the absence thereof in his execution of the second moving roadblock was previously determined in the Supreme Court Order. Claimants have not offered any substantive argument in opposition from which this Court could find that Claimants did not have a full and fair opportunity to litigate that narrow issue in the prior action. As such, this Court finds that the State is entitled to amend its Verified Answer to include the affirmative defense of collateral estoppel solely in relation to Police Officer Adams' execution of the second moving roadblock, as well as an order precluding Claimants from offering evidence to the contrary on that narrow issue at trial.[4] (O'Connor v State of New York, 126 AD2d 120, 124-125, affd 70 NY2d 914).


B. Causation

The second finding encompassed in the Supreme Court Order was that Adam Kitt's "[o]wn conduct was the proximate cause of the accident [citations omitted]". (Supreme Court Order, p 3). The State contends that this finding on causation is also entitled to collateral estoppel and thus precludes the possibility that the State Troopers could be deemed to be a proximate cause of the accident in this Court of Claims action. This Court disagrees. The Supreme Court determined causation as between the Village Police Officer Adams versus the fleeing driver starting from the point in the chase of Police Officer Adams' involvement.[5] The Supreme Court Order does not address the conduct of the State Troopers prior to Police Officer Adams' involvement, other than the initial decision to commence pursuit, nor could it have given the jurisdictional limits regarding State liability. (O'Connor v State of New York, supra, 70 NY2d 914). Claimants here have previously outlined tenable theories of liability which have nothing to do with Police Officer Adams such as the continuing nature of the State pursuit, the failure to terminate the pursuit, and the alleged violations of various provisions of the State Police Field Manual.[6](Dale v State of New York, supra, p 7). In this Court's view, Police Officer Adams' conduct is but one component of these other issues before this Court. None of these other issues were under review by Supreme Court and thus the finding relative to causation cannot be said to be identical and decisive to the causation analysis presented here. (Lindgren v New York City Hous. Auth., 269 AD2d 299, 301 ["Although some of the same facts underlie both questions, the two cases involve different elements of proof and different evidence, such that there is no identity of issues."]). Consequently, this Court finds that the State has not met its burden of establishing that the causation issue in Supreme Court is identical and decisive here.


Finally, the Court notes that res judicata, or claim preclusion, "[h]olds that, as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action [citations omitted]." (Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485). Res judicata is not applicable here inasmuch as there is a lack of privity between the State and Village.


In sum, the Court holds that the findings of the Supreme Court Order that Police Officer Adams' actions did not rise to the level of reckless disregard and that the actions of Mr. Kitt were the sole proximate cause of the accident are not entitled to res judicata and/or collateral estoppel effect on the issues before this Court relative to the State Troopers conduct. The State is, however, entitled to amend its Verified Answer to include the affirmative defense of collateral estoppel solely in relation to Police Officer Adams' execution of the second moving roadblock, as well as an order precluding Claimants from offering evidence to the contrary on that narrow issue at trial. Consequently, the State's motion to amend its Verified Answer and for an Order to add the affirmative defenses of collateral estoppel and res judicata pursuant to CPLR 3025 and an Order precluding Claimants from offering evidence at trial concerning issues which have previously been decided by Supreme Court is granted in part and denied in part in accordance herewith.


2). State's Motion for Reargument-Vehicle and Traffic Law 1104

A motion to reargue is premised upon the theory that the court has overlooked or misapprehended significant facts or misapplied the law in its original decision, but does not include the introduction of any new facts. (Matter of Town of Poestenkill v New York State Dept. of Environmental Conservation, 229 AD2d 650; Foley v Roche, 68 AD2d 558, 567, lv denied 56 NY2d 507; CPLR 2221 [d]). In previously denying the State's motion for summary judgment, this Court stated as follows with respect to the reckless disregard standard found in Vehicle & Traffic Law 1104:
[t]he State did not plead this defense as an affirmative defense as required. (Culhane v State of New York, 180 Misc 2d 61). Nevertheless, leave to amend is freely given when Claimant does not assert surprise or prejudice. Claimant did not raise this issue in opposition and responded to the motion on the merits. As such, the State's Verified Answer will be deemed amended to include a reliance on Vehicle and Traffic Law 1104.

(Dale v State of New York, supra, p 7, fn 5).


On the threshold question of whether the Court should consider the State's motion to reargue, the Court notes that it initially raised, sua sponte, the point at issue in a footnote in its prior Decision & Order, but it was not an issue briefed by the parties. As such, the Court will exercise its discretion, and grant the State's motion for reargument to allow the parties an opportunity to address the issue directly.


Turning to the merits of the motion, the State takes issue with this Court's determination that its Verified Answer was deemed amended to include Vehicle & Traffic Law 1104. The State contends that Vehicle & Traffic Law 1104 merely defines the extent of the duty owed and is not an affirmative defense to be pled in an answer. Claimant opposes the State's argument, but does not offer any substantive legal argument in opposition.[7] Upon further review, this Court finds that Vehicle & Traffic Law 1104 need not be pled as an affirmative defense for the reasons outlined by the State. (Riley v County of Broome, 95 NY2d 455; Ferres v City of New Rochelle, 68 NY2d 446; McDonald v State of New York, 176 Misc 2d 130; cf., Culhane v State of New York, 180 Misc 2d 61). As such, the Court amends its prior Decision & Order by deleting footnote 5 therefrom.


In view of the foregoing, it is ORDERED, that the State's motion for leave to amend its Verified Answer pursuant to CPLR 3025 to include the affirmative defenses of collateral estoppel and/or res judicata is GRANTED IN PART and DENIED IN PART in accordance with the foregoing; and


It is FURTHER ORDERED the State's motion for reargument is GRANTED and, upon such argument, this Court's prior Decision & Order, Motion No. 63714, is amended by deleting footnote 5 therefrom which deemed the State's Verified Answer to be amended to include a reliance on Vehicle & Traffic Law 1104.


The Court will contact the attorneys for purposes of scheduling a conference to discuss a schedule for the completion of outstanding discovery, if any, and the scheduling of a liability trial.


April 24, 2002
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]The State filed a motion for summary judgment with the Clerk of this Court on July 5, 2001, which was adjourned upon request until September 5, 2001. The Supreme Court Order is dated March 14, 2001, which is well before the State filed their first motion in this Court.
[2]Claimants raise the State's failure to include these affirmative defenses in its Verified Answer in the first instance. However, the Court finds the State could not have done so given the respective timelines of these actions. The State filed its Verified Answer on April 28, 1998. Although the State may have been aware of a pending companion case in Supreme Court at that time, the Supreme Court Order on which it now relies was not issued until March 14, 2001. Thus, it was an impossibility for the State to assert the affirmative defenses of collateral estoppel/res judicata in its Verified Answer based upon a decision not yet in existence. (Neulist v County of Nassau, 108 Misc 2d 160, 163, affd 88 AD2d 587, lv denied 57 NY2d 606). Moreover, Claimants do not address nor establish how they would be prejudiced by the proposed amendment, especially in view of the fact that Claimants were well aware of the Supreme Court Order since they were the losing party in connection therewith.
[3]The State did not provide the record from the Supreme Court motion, although it has been noted that the application of the identity of issues requirement may be reached "[o]nly by a careful perusal of the record in the first action and a thorough examination of the scope and direction of the second action." (10 Weinstein-Korn-Miller, NY Civ Prac ¶ 5011.26).
[4]Query, whether or not different phases of Police Officer Adams' conduct might, in conjunction with the State Troopers conduct, be open to further review?
[5]Near the end of an approximate 15 minute chase extending over 15-17 miles.

[6]In this Court's prior Decision & Order, the possible provisions of the State Police Field Manual included:

(1) section 30B2(e)(7) stating that no more than 2 vehicles should be engaged in a pursuit absent supervisor's authority; (2) section 30B2(j)(1) that no outside agency should be involved in a pursuit absent supervisory approval; (3) section 30B2(d)(2) that the nature of the offense should be considered in initiating a pursuit and on a continuing basis; and (4) section 30B(f)(3) that moving roadblocks should only be used with supervisory approval, unless extraordinary or life-threatening circumstances exist.


[7]Parenthetically, the Court notes that Claimant here never argued that the State waived the defense of reckless disregard by failing to plead it in its Verified Answer nor disputed that the reckless disregard standard set forth in Vehicle & Traffic Law 1104 would be the applicable standard at trial.