New York State Court of Claims

New York State Court of Claims

CHRISTOPHER v. THE STATE OF NEW YORK, #2008-031-036, Claim No. 108185, Motion Nos. M-74989, CM-75067


Synopsis


Department of Correctional Services prisoner transport bus was a “police vehicle” and an “authorized emergency vehicle” in an “emergency operation” as defined by V&T 1104. Accordingly, the proper standard for recovery is reckless disregard as opposed to mere negligence. However, a question of fact exists as to whether transport driver’s actions constituted reckless disregard. Defendant’s motion granted in part, Claimant’s cross motion denied

Case Information

UID:
2008-031-036
Claimant(s):
STEVEN CHRISTOPHER
Claimant short name:
CHRISTOPHER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108185
Motion number(s):
M-74989
Cross-motion number(s):
CM-75067
Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
CHRISTOPHER G. JOHNSON, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
BY: LAW OFFICE OF LAURIE G. OGDENDAVID F. BOWEN, ESQ.
Third-party defendant’s attorney:

Signature date:
July 11, 2008
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 through 8, were read on motion by Defendant for summary judgment and on cross- motion by Claimant to strike Defendant’s fifth Affirmative Defense:
1) Defendant’s Notice of Motion (M-74989), filed May 22, 2008;
  1. Affidavit of David F. Bowen, Esq., sworn to May 16, 2008, with attached exhibits;
3) Defendant’s Memorandum of Law, dated May 16, 2008, with attachment;
4) Claimant’s Notice of Cross-Motion (CM-75067), filed June 9, 2008;
5) Affirmation of Christopher G. Johnson, Esq., dated June 5, 2008, with attached exhibit;
6) Claimant’s Memorandum of Law, dated June 5, 2008;
7) Affidavit of Anthony M. Sindoni, sworn to June 20, 2008;
8 ) Filed Documents: Amended Claim and Answer. BACKGROUND

On September 20, 2001, Defendant’s agent, Correction Officer Anthony M. Sindoni, was transporting a group of inmates, including Claimant, in a bus operated by the New York State Department of Correctional Services (“DOCS”). According to Claimant, Officer Sindoni was traveling southbound on Route 77 when he crossed a double yellow center line to pass slower moving traffic in front of him. However, one of the vehicles in front of the bus was turning left at the same time and the DOCS bus collided with this other vehicle.
By claim filed on August 25, 2003 and amended on September 15, 2003, Claimant commenced this action to recover for personal injuries he allegedly sustained in the accident. In his claim, Mr. Christopher alleges that Officer Sindoni’s actions were both negligent and reckless.
CURRENT MOTIONS
Both parties have filed motions relating to the appropriate legal standard applicable to the driver of the bus. Defendant asserts that the exemptions of Vehicle and Traffic Law § 1104 apply and that, accordingly, liability can only attach if Officer Sindoni was reckless. Defendant further argues that summary judgment is appropriate because the actions of Officer Sindoni, while perhaps negligent, do not rise to the level of reckless disregard for the safety of others. Claimant seeks to have Defendant’s fifth affirmative defense stricken from the answer. That defense sets forth Defendant’s contention that this action is governed by the reckless disregard standard. Claimant argues that the protections of Vehicle and Traffic Law § 1104 do not apply and that the appropriate standard is simple negligence. Further, even if the reckless standard set forth in Vehicle and Traffic Law § 1104 is appropriate, Claimant argues that there is at least a question of fact concerning whether Sindoni’s actions meet this higher standard.

In any application for summary judgment, the moving party bears a heavy burden in establishing that he or she is entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Andre v Pomeroy, 35 NY2d 361; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).

In support of its application, Defendant addresses the various provisions of the Vehicle and Traffic Law which support its position that the reckless standard is applicable. Vehicle and Traffic Law § 1104 provides that the driver of an “authorized emergency vehicle” in the course of “emergency operation” will be liable only for reckless disregard for the safety of others and will be otherwise immune from actions based on claims of simple negligence. Vehicle and Traffic Law § 101 states that “authorized emergency vehicles” include “correction vehicle.” Vehicle and Traffic Law § 114-b defines “emergency operation” to include “transporting prisoners.” Accordingly, it would preliminarily seem obvious that the bus used by the DOCS to transport prisoners did enjoy the privileges of § 1104.

The confusing factor, its seems, is that Vehicle and Traffic Law § 1104 divides the group of otherwise qualified vehicles into two categories: police vehicles and non-police vehicles. Vehicle and Traffic Law § 1104(c) indicates that, unless the “authorized emergency vehicle” is also a “police vehicle,” it must have flashing lights and/or a siren activated at the time to qualify for the immunities provided in the section. The DOCS bus in question was not equipped with such audible and visual signals and, therefore, unless it was also a “police vehicle,” it did not enjoy the privileges of Vehicle and Traffic Law §1104.

Accordingly, whether the DOCS bus qualifies as a “police vehicle” under the statute has been a hotly contested issue in this application. According to Defendant, Vehicle and Traffic Law § 132-a provides that any vehicle owned by the State and operated by a police or law enforcement agent is deemed to be a “police vehicle.” To this end, each party has also disputed whether or not Officer Sindoni was a “police officer” as defined by Vehicle and Traffic Law § 132. For the purposes of this application, I find that Officer Sindoni was a “peace officer” as defined by Criminal Procedure Law § 2.10[25] and, therefore, he was also a “police officer” as defined by Vehicle and Traffic Law §132.

The analysis does not necessarily end there. One could argue that Vehicle and Traffic Law § 132-a does not define a police vehicle as one operated by a law enforcement agent, but rather one operated by a law enforcement agency. Put another way, it is not the qualifications of the individual driver, but rather the agency for whom he drives, that determines whether or not the vehicle is a police vehicle (see e.g. Church v City of New York, 268 AD2d 382), prisoner transport van without lights and sirens a “police vehicle” despite being driven by civilian operator). Vehicle and Traffic Law § 132-a defines a police vehicle as “every vehicle owned by the state, . . . and operated by the police department or law enforcement agency of such governmental unit . . .”

Accordingly, to the extent that Officer Sindoni’s status as a police officer is not sufficient to qualify the DOCS bus as a “police vehicle,” I find it necessary to address the issue of whether the DOCS bus qualifies as a police vehicle because the New York State Department of Correctional Services is a “law enforcement agency” under the statute. In this regard, I note that the statute itself does not define “law enforcement agency.” In Matter of Katherine B. v Cataldo (5 NY3d 196), Judge Susan Phillips Read also searched for a statutory definition of “law enforcement agency,” albeit in the context of determining authority to request the unsealing of previously sealed criminal records. She determined that “[t]he term ‘law enforcement agency’ therefore includes law enforcement entities in addition to police departments and the Division of Criminal Justice Services” (5 NY3d 196, 204). Similarly, I note that Black’s Law Dictionary, 7th Ed., defines “law enforcement” as “[t]he detection and punishment of violations of the law.” Accordingly, as the DOCS is both a part of the criminal justice system and specifically involved in carrying out punishments of violations of the law, and as I can find no support for the contrary argument, I find that the DOCS is a law enforcement agency.

Finally, I find no significance in the fact that Defendant did not own title to the DOCS bus, but rather leased it. Vehicle and Traffic Law § 128 specifically includes “lessee” in the definition of owner. Accordingly, I find that Defendant does enjoy the privileges set forth in Vehicle and Traffic Law § 1104 and the higher, reckless disregard standard is applicable.

This brings us to whether or not Defendant has met its burden of demonstrating its right to summary judgment on the issue of reckless disregard. I am aware that in Heckstall v State of New York (Ct Cl, April 26, 2004 [Motion No. M-66939], Patti, J., UID #2004-013-021) my colleague, the Hon. Philip J. Patti, addressed similar issues arising from the very same accident. I note that Judge Patti found, as did I, that the higher, reckless disregard standard applied. He also found that the Claimant in that action had failed to demonstrate the merit of the proposed action. Claimant correctly points out, however, that a late claim application involves a different type of analysis with a different burden. Here, the record indicates that Claimant was dozing at the time of the accident and does not know how the accident occurred. Officer Sindoni, indicates that the vehicle in front of him (the “Pinelli” vehicle) was towing a trailer, traveling very slowly and did not have any turn signals on. His affidavit indicates that he determined that this vehicle presented a potential hazard and a security risk, so he decided to pass the vehicle and keep moving. He states that he signaled left and pulled out to pass the Pinelli vehicle. As he did so, the Pinelli vehicle turned left into the side of the DOCS bus. I find that, based upon Officer Sindoni’s Affidavit, Defendant has submitted adequate proof indicating that, while perhaps negligent, Officer Sindoni’s actions were, at worst, a momentary lapse in attentiveness.

When the moving party has successfully met its burden, the party who opposes a summary judgment motion must "assemble, lay bare and reveal his proofs, in order to show that the matters set up in his [pleading] are real and are capable of being established upon a trial" (DiSabato v Soffes, 9 AD2d 297 at 301). “Bald, conclusory assertions” (Ehrlich v American Moninger Greenhouse Manufacturing Corp., 26 NY2d 255, 259) and the “shadowy semblance of an issue” cannot, by themselves, defeat a motion for summary judgment (DiSabato v Soffes, supra, at 300).

In opposition to Defendant’s motion, Claimant pointed out that Mr. Pinelli, the driver of the other vehicle involved in the accident, told a different version of the events at issue. He states that he was stopped in traffic for approximately one minute while waiting to make a left hand turn. He had his turn signal on. According to him, there were two other cars between him and the DOCS bus. When he finally determined that oncoming traffic no longer presented a danger, he turned left and almost instantaneously made contact with the DOCS bus.

In order to demonstrate reckless disregard, Claimant must demonstrate that Officer Sindoni’s actions were “of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow, and done with conscious indifference to the outcome” (Szczerbiak v Pilat, 90 NY2d 553, 557). Although this is a high standard, if I were to adopt Mr. Pinelli’s version of the events, as I must for purposes of this motion, I cannot state that, as a matter of law, Claimant cannot demonstrate reckless disregard. Therefore, although I find that Defendant has adequately demonstrated that the higher standard of reckless disregard is applicable to this matter, summary judgment would be inappropriate.

Accordingly, it is hereby

ORDERED, that Defendant’s motion and Claimant’s cross-motion are both denied.

July 11, 2008
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims