New York State Court of Claims

New York State Court of Claims
ZELEKE v. THE STATE OF NEW YORK, # 2010-030-017, Claim No. 113363

Synopsis

State of New York 80% responsible; claimant 20% responsible for accident in busy urban setting. New York State park police officer acted with reckless disregard for the safety of others in responding to police call. Officer reacting out of proportion to the nature of the emergency operation.

Case information

UID: 2010-030-017
Claimant(s): ASEGEDECH ZELEKE
Claimant short name: ZELEKE
Footnote (claimant name) : Claimant's first name has been amended to reflect its proper spelling.
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113363
Motion number(s):
Cross-motion number(s):
Judge: THOMAS H. SCUCCIMARRA
Claimant's attorney: CHUKWUEMEKA NWOKORO, ESQ.
Defendant's attorney: HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: ELLEN MENDELSON, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:
Signature date: June 3, 2010
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Asegedech Zeleke alleges that on May 29, 2005 she was injured when she lawfully proceeded in the car she was driving through the intersection of 12th Avenue and West 132nd Street in New York City and was struck by a vehicle owned by the New York State Park Police, and operated by New York State Park Police Officer Cory Anderson, who ran a red light controlling the intersection. This decision relates only to the issue of liability, determined after a bifurcated trial, held on January 20 and 21, 2010, and after submission of post-trial memoranda.

Ms. Zeleke testified(2) that she had just left a parking lot of the grocery store she regularly frequented and was proceeding in her Isuzu "Four by Four" "SUV" [T-19](3) eastbound on 132nd Street when she reached its intersection with 12th Avenue, facing a green light. At the intersection, she noticed to her left a large Jeep SUV stopped at the red light at the southbound corner of 12th Avenue. She slowly proceeded with the light into the intersection, traveling between "15 and 20 miles per hour" [T-27], and had reached the middle of the intersection when a State Park Police vehicle suddenly pulled out from behind "a big Jeep [stopped in the southbound lane at the red light on 12th Avenue]" [T-24], "jumped" over the yellow line onto the northbound traffic lanes of 12th Avenue at a high speed, striking the front side of her vehicle with enough force that it completely spun around and turned in the opposite direction. She asserted that the police vehicle did not have any emergency lights or sirens operating, and it was traveling so fast that she had no opportunity to take evasive action once she saw it. The windows of her car were down, and she did not have the radio on.

After the impact, and the sensation of being turned around, she lost consciousness, only seeing the damage to her car later. Photographs of her car show extensive damage to the front end on the driver's side of the vehicle, and all along the driver's side, generally, to the back end of the vehicle. [See Exhibits 22, 23, 25].

Joseph Nshimirima was at his employment for Fairway Supermarket as security guard in a booth located at 132nd Street and 12th Avenue on the northwest corner of the intersection and testified that he witnessed the accident on the afternoon of May 29, 2005. He said that when he saw claimant's car traveling on 132nd Street at its intersection with 12th Avenue, the traffic light was green for those traveling on 132nd Street. He, too, testified that there were no lights or sirens on the police vehicle, and that it was going fast, although he could not quantify the speed. He also said that the police vehicle was in the lane for northbound rather than southbound traffic.

On cross-examination Mr. Nshimirima agreed that he told the defendant's investigator one week before the trial that he did not witness the accident, but heard a crash, turned around, and then saw that two cars had crashed, although given some uncertainty with the English language, his understanding of what it was he was agreeing to in counsel for the defendant's question made his response equivocal at best.(4) Similarly, counsel for defendant's questions about his prior acquaintance with Ms. Zeleke, to show, presumably, collusion of some kind, were not persuasive. Indeed, he neither appeared to understand counsel's question, nor did he respond one way or the other. [See T-83].

Both Ms. Zeleke and Mr. Nshimirima identified a photograph submitted as depicting the intersection at issue. [See Exhibit 8]. The photograph shows traffic on 12th Avenue going southbound - with northbound traffic facing the viewer - and depicts the point of impact between claimant's car and the police car. Ms. Zeleke marked the photograph to show her direction of travel eastbound on 132nd Street (such traffic direction emerging from the right side of the photograph) as well as the location and direction of travel of the park police vehicle as it moved out from behind the large Jeep SUV, across the double yellow lines into northbound traffic where the cars collided. [Id.]. Large cement and steel stanchions upon which Riverside Drive is suspended frame 12th Avenue, with one at each corner of its intersection with 132nd Street, creating obvious visibility obstacles. [Id.].

Portions of the deposition testimony, taken on December 18, 2007, of Cory Anderson, the Park Police Officer involved in the accident,, were read on the claimant's direct case. During such deposition, Officer Anderson could not recall the speed at which he was traveling, whether he maintained the same rate of speed as he approached the crosswalk, whether there were any cars in front of him heading south as he drove, either moving or standing still, whether he had to go around any cars as he approached the intersection at issue, or at what speed claimant's vehicle was traveling when he first saw it. He did recall, however, that the light was "changing over to green" [T-106] for his direction of travel, because at the prior intersection,

"at 133rd Street, I noticed it changed from amber to red for the opposite traffic and my knowledge of the area, that light changes just prior to the other one." [T-107].

It was his recollection during his deposition that it was after the impact with the claimant's car that his car

"started veering into the northbound lane . . .[as a result of] I would assume the impact. I don't have knowledge. I'm not positive." [T-110].

After contact with the black SUV [claimant's car], he came into contact "with a vehicle heading northbound, a parked vehicle, and then into the cement structure." [T-110].

No other evidence was admitted on claimant's direct case.(5)

Officer Anderson also testified at the trial as one of two State witnesses. He said he had been a New York State Park Police Officer for seven years at the time of trial, and spoke about his training and experience, as well as his recollection of the accident. Part of his six (6) months' training as a Park Police Officer included an Emergency Vehicle Operator's course held at "an airport", which he described as a series of obstacle courses to maneuver vehicles through, to train for operating a vehicle "under somewhat intensive situations." [T-116].

After he graduated from the academy in June 2003, he was assigned to the New York City region, which covers all five boroughs. He worked there for "approximately 3 years." [T-117]. In May 2005 he was assigned to work the 7:00 a.m. to 5:00 p.m. shift. He reported daily to Riverbank State Park from June 2003 to May 2005, and would be assigned anywhere in the five boroughs, including Riverbank or Roberto Clemente, or as a "rover car" between State parks, all depending on the needs of a given day. [T-118].

He estimated that between June 2003 and May 2005 he was called "pretty often" to "aided cases", "a few times a week at least." [T-119]. Generally, he said, when the call came in from the dispatcher to go to an aided case, for the most part it was up to the responding officer to determine whether it was an emergency, unless the dispatcher said something directly. He said that because of the small patrol area assigned, sometimes he would already be near the location, or sometimes the dispatcher would know something

"light had happened. If I didn't know the extent of the . . . injuries, I would probably try to get there as fast as possible, because we had to wait for the dispatcher to wait on calling EMS until we said whether it was need[ed] or not." [T-119-120].

When the police call came in on May 29, 2005 reporting that there was, "a male child . . . injured at the skating rink" [T-120].Officer Anderson said he was at "Post 17" at the "12th Avenue extension" which is an area that extends from 135th Street, at a security gate, [to] 145th Street. [T-122]. He exited the security area, making a left onto 135th Street, and then making an immediate right onto 12th Avenue, going southbound. He said

"As I approached the light at 133rd Street, the light for my direction was a steady red. I came to a stop, if not - - if not almost complete stop, close to it, and checked in both directions as I activated my emergency lights and sirens to go through the intersection when I felt that it was safe to proceed through." [T-123].

When he reached 133rd street at its intersection with 12th Avenue, he said there was a southbound vehicle stopped at the red light in front of him, and that he moved around, it leaving the southbound lane to go into the northbound lanes. He said,

"however, by the time I approached 132nd street, I was back in my lane facing a green light with no vehicles." [T-137].

After he passed the 133rd Street intersection, he

"began accelerating, got about . . . halfway through the block between 133rd and 132nd, . . . I noticed my light turn from red to green, as I proceeded through. As I approached I was kind of looking around, noticing still nobody was coming, I began to accelerate a little more into southbound. At that point, as I entered the intersection, I saw nothing, saw nobody coming. Just as I was about to clear the crosswalk, all the sudden, pretty much out of nowhere, I saw a black SUV coming from the . . . west . . . [The SUV had a] red [light]. I know it certainly to be red. Mine was green." [T-124-125].

Officer Anderson said when he saw the SUV, he

"attempted to maneuver my vehicle out of its way . . . I attempted to move left, but there was almost no time to do so, no reaction time. I know when moving my foot from the brake to the gas pedal, I got - - my foot actually got stuck between the two pedals and it was pretty bad from that." [T-125].

He said that "from what I know" the SUV "impacted me on the passenger side of my vehicle, about halfway back on the vehicle," pushing the car "into a cement stanchion on the southeast corner of the road." [T-125].

Asked by defense counsel to calculate how fast the other driver was going, he said "I do not know how fast they were going" and then said "but I assume they were, in my mind I thought they were probably trying to accelerate to beat the traffic light." [T-125]. Asked what speed he was going, Officer Anderson said because he "was paying attention to the surrounding, the traffic, the pedestrians, I never looked at my speedometer" and thus did not know what speed he was going. [T-126]. He said he left the siren and lights on from when he first engaged them on 12th Avenue at its intersection with 133rd Street.

The officer identified two photographs as depicting how the cars came to rest after the accident. [Exhibits C and D]. The front end and driver's side of the police vehicle appear to be crushed as the vehicle rests against a cement stanchion. [Exhibit C]. In addition to the police vehicle and claimant's car, two other vehicles including a red mini van and a small black sedan show substantial damage as well. [Exhibits C and D].

When asked on cross-examination whether it was "customary" for the dispatcher to call the fire department or the ambulance service when the person to be aided required medical care, Mr. Anderson said "[o]nly after we arrive on scene and notify them the nature of the call and if an ambulance is needed." [T-142]. Asked why the stated procedure he described had not been followed in this case, he could not say, and he acknowledged that the dispatcher had already called or was in the process of speaking with the fire department for an ambulance. The Court notes that although the dispatcher was known by both parties, he was not called as a witness. Additionally, no procedural departmental rules or other guidelines were presented to show if indeed the procedure for a medical emergency is to have nonmedical personnel, such as a park police officer, assess the situation before calling an ambulance.

Officer Anderson confirmed that the emergency lights on the police vehicle he was driving that day can be turned on without turning on the siren. He said generally he turns on both; however there had been occasions where he had turned on just the emergency lights when, for example, he did not want to alert a suspect in a crime-in-progress scenario.

Confirming that officers are required to list daily assignments or calls on a daily report, with regard to this particular occasion, he could not recall whether he had noted the fact of the call in his daily patrol report, but did remember that he did not ask the dispatcher if it was an emergency, and did not ask the dispatcher for any further details assuming that "if there was any[thing] further, that he would have given everything to me already, what he had." [T-145]. All he heard was "that it was a small boy injured." [T-145].

On redirect, Officer Anderson agreed that it was a matter of "internal policy " at "Parks" that "any time an aided is a child" to treat such call as an emergency, saying "[w]hether it's children or not, yes, it's usually considered an emergency, especially if you don't know the circumstances." [T-146].

In a New York State Park Police memorandum from Officer Anderson to Lieutenant Joseph Mansonet, dated "05-31-05", the officer writes:

"On Sunday May 29, 2005, at approximately 1450 hrs the writer was traveling Southbound on 12th avenue in Manhattan responding to an aided call at Riverbank State Park. The writer was responding from post 17 at Riverbank State Park. When the writer reached the traffic light at W 133rd St. and 12th avenue, he noticed the light to be a steady red. As the light for eastbound and westbound traffic was changing from yellow, to red, the writer activated the emergency lights and sirens and after determining it to be safe, the writer proceeded through the intersection.

As the writer approached to the intersection of W 132st and 12th avenue, the writer noticed the traffic light change from red to green. As the writer proceeded towards the intersection, the writer noticed a black SUV enter the intersection at approximately the same time approaching from the west.

The writer immediately attempted to maneuver the force vehicle to avoid a collision however there was not time to do so and the writer was struck by said SUV." [Exhibit B].

Crystal Combs, an investigator for the Attorney General's Office for two (2) years, and an eleven- (11) year New York State employee, testified as a rebuttal witness with regard to the eyewitness testimony of Mr. Nshimirima. She said she interviewed Mr. Nshimirima a week before the trial at the Fairway Supermarket, accompanied by Assistant Attorney General John Hunter. She reported that at that time the witness indicated that on the afternoon of the accident he was standing near his booth at the corner of West 132nd Street and 12th Avenue, facing the water, when he heard a crash and sirens, turned to his right and saw the claimant's car and the police officer's car at rest "on the southeast corner of 12th Avenue and West 132nd Street," [T-153], and he also demonstrated where he had been standing that afternoon by walking with her to the intersection. He said he recalled claimant's car going past, "and then he heard a siren and a crash simultaneously." [T-156]. When asked whether she had specifically asked Mr. Nshimirima if he saw the crash occur, Ms. Combs said: "I asked him that. He said he didn't see the cars collide, he only heard the crash and by the time he turned around, they had already came to a rest on the southeast corner." [T-157].

No other witnesses testified and no other evidence was submitted.

DISCUSSION AND CONCLUSION

After carefully considering the evidence submitted and after having the unique opportunity to listen to the witnesses' testimony and observe their demeanor as they did so, and in considering the respective burdens of proof, the Court finds that claimant has established that the State of New York is in part responsible for this accident and any injury to claimant proximately caused.

As an initial matter, defendant urges the applicability of the provisions of Vehicle and Traffic Law 1104(6) , whereby police vehicles [see Vehicle and Traffic Law 101(7) ] involved in an emergency operation [Vehicle and Traffic Law 114-a(8) ] may avoid penalties associated with failures to obey the rules of the road unless the vehicles are operated with "reckless disregard for the safety of others." Vehicle and Traffic Law 1104 (e). Additionally, as a police vehicle, the car operated by Officer Anderson is exempt from the additional requirement for other types of vehicles that they utilize sirens and lights when engaged in an emergency operation [see Vehicle and Traffic Law 1104(c)], although a failure to sound alarms and turn on lights may be a factor in showing recklessness.

Defendant has established its affirmative defense [see Verified Answer, Sixth Affirmative Defense] to the extent of providing that the reckless standard applies, because it is self-evident that the vehicle at issue is an authorized emergency vehicle, and the testimony of Officer Anderson established that he was involved in an emergency operation. Indeed, based upon the post-trial memoranda submitted by both counsel, the issue presented for resolution is whether Officer Anderson's conduct while answering a police dispatch - and thus engaged in an emergency operation - was reckless. The threshold issues concerning the applicability of the standard appear to have been conceded.

Indeed, Officer Anderson testified without contradiction that he was responding to a police dispatch reporting an injured child at the skating rink. Certainly the Court is not obligated to accept his testimony because a court is always required to assess the credibility and consistency of any witness offered, and has done so in this case. An important part of that role is observing the behavior and demeanor of witnesses as they testify, assessing the internal consistency of their accounts, and the court is never bound to credit a particular fact. Indeed, ". . . '[i]f everything or anything had to be believed in court simply because there is no witness to contradict it, the administration of justice would be a pitiable affair' (Punsky v City of New York, 129 App Div 558, 559; Matter of Nowakowski, 2 NY2d 618)." Brennan v Bauman & Sons Buses, Inc., 107 AD2d 654, 655 (2d Dept 1985); accord Lucks v Lakeside Mfg., Inc., 37 AD3d 666 (2d Dept.2007); see 1A NY PJI 3d 1:41, at 55-56 (2006). Nonetheless, the fact that Officer Anderson could not remember at trial some five years later whether the police call was noted in his daily log (nor was he shown any document to refresh his recollection) does not undercut his credible testimony that there was a call, memorialized in a contemporaneous memorandum [Exhibit B]. Similarly, concessions on cross-examination concerning the officer's awareness of more specifics concerning the emergency, including that an ambulance had already been dispatched is only pertinent as to the reasonableness of his response to the call, not whether a call was in fact made.

As interpreted by the Court of Appeals, a "police call" under the emergency operation statute [Vehicle and Traffic law 114-b] is any type of police dispatch, even if the department itself characterizes the dispatch as a non-emergency. Criscione v City of New York, 97 NY2d 152 (2001).

If responding to a police call is the predicate for the emergency operation (as opposed to involvement in a chase), however, then Courts will look at the type of call as one measure of recklessness. For example, when a police officer responded to a police call concerning an intoxicated customer at a bar by driving 70 miles per hour through a lightly traveled village while knowing that another officer was already responding, the routine nature of the call was a factor in determining that the police officer's conduct was in reckless disregard for the safety of others. See Allen v Town of Amherst, 8 AD3d 996 (4th Dept 2004); See also O'Banner v County of Sullivan, 16 AD3d 950 (3d Dept 2005).

On the other hand, liability is not imposed for a "momentary judgment lapse". See Green v State of New York, 71 AD3d 1310 (3d Dept 2010). Thus a police officer who assumed that a car was actually stopped when he started to execute a U-turn was found to have suffered a momentary lapse in judgment given other evidence of precautions he took prior to moving his car. [Id.].

Recklessness "requires evidence that 'the actor 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 . . . (citation omitted)." Saarinen v Kerr, 84 NY2d 494, 501 (1994). What constitutes reckless conduct clearly varies depending on the situation faced by the actor.

It is the claimant's burden to establish her cause of action by a preponderance of the credible evidence. Claimant was a largely credible witness, and clearly initially proceeded into the intersection while the light was green for her direction of travel based not only on her own testimony, but that of Mr. Nshimirima. Officer Anderson, too, was credible in part. On the whole, on the issue as to whether the officer proceeded with reckless disregard for the safety of others, however, claimant has sustained her burden of proof.

This was a busy urban setting with steel stanchions forming their own obstruction of the view. Although there was no testimony concerning what the posted speed was, the officer was described as traveling fast, on his own account, and by Ms. Zeleke's. Notably he was traveling fast enough that he could not effectively take evasive action, and upon impact with claimant's car his car veered, hers spun, and two to three other cars suffered major damage in the collision.

While the Court credits that part of the officer's testimony to the effect that he turned on his lights and siren as he proceeded through 133rd Street, and his description of a less than complete stop at the intersection of 133rd Street and 12th Avenue, it is significant that by his own testimony he thereafter accelerated twice before reaching the intersection of 132nd Street and 12th Avenue. Indeed, acceleration on the approach to an intersection is a factor in showing recklessness, as is proceeding with an obstructed view. See e.g. Burrell v City of New York, 49 AD3d 482, 483 (2d Dept 2008). While the officer said the light was "about" to turn green for his direction of travel, such testimony also establishes that the light was still red when he entered the intersection. The fact that he did not stop at all, or pause, at the subject intersection was also established by his own testimony (in addition to that of claimant). Even if the Court were to credit that claimant was in the intersection when the light was orange (based on the officer's "impression" that the Jeep was trying to beat the yellow light, another observation included only at trial), the light for the police vehicle would still be red in his direction of travel.

Ms. Zeleke credibly described a large Jeep blocking the view at the intersection of 12th Avenue and 132nd Street, from which the police car pulled out and jumped into the northbound lanes. Mr. Nshimirima also saw the police vehicle in the northbound lanes. Officer Anderson, on the other hand, described somewhat elaborately at trial traveling into the northbound lanes at the previous intersection with 133rd Street. Significantly, this was a fact not mentioned in either the contemporaneous memorandum submitted to his superior officer [Exhibit B], or in the portions of the deposition read at trial. Consequently, this part of his testimony was not credible.

In taking the actions he did, he was reacting out of proportion to the nature of the emergency operation. He could not offer medical help and knew that medical help was already on its way [see Allen v Town of Amherst, supra], yet he chose to travel at an excessive speed down a busy urban street, and enter the subject intersection through a red light when his visibility was blocked by both the cement stanchions and vehicles stopped at the stop light at the intersection of 12th Avenue and 132nd Street. Thus, while a police officer engaged in an emergency operation may proceed through a red light, he may do so "only after slowing down as may be necessary for safe operation." See Corallo v Martino, 58 AD3d 792, 793 (2d Dept 2009), quoting Vehicle and Traffic Law 1104(b)(2). Indeed, Officer Anderson demonstrated that he intentionally proceeded in the face of a known risk by choosing to pause at 133rd Street, and by then subsequently failing to do so at 132nd Street. Under the totality of the circumstances, he proceeded with reckless disregard for the safety of others in his path.

By the same token, the fact that the officer turned on his siren and the emergency lights at the 133rd Street intersection should have been something observed by claimant, just as she observed the large Jeep obstructing the view of southbound traffic. Claimant is in part responsible for the accident as well.

Based on the foregoing, the Court finds that the State of New York is liable for the reckless conduct of its agent, and in apportioning responsibility for this accident finds that the State of New York was 80% responsible for the accident, and the Claimant was 20% responsible.

The Clerk of the Court is directed to enter interlocutory judgment in accordance with this decision. Trial on the issue of damages shall be held as soon as practicable.

June 3, 2010

White Plains, New York

THOMAS H. SCUCCIMARRA

Judge of the Court of Claims


2. Claimant testified with the assistance of an Amharic interpreter.

3. All quotations are to the trial transcript or audio recordings unless otherwise noted.

4. "Q: So; you told my investigator that you didn't actually witness the accident, but you heard a crash, you turned around and saw the two cars had crashed; is that correct? A: Yes, sir. I was there." [T-82].

5. The Court notes that counsel for claimant indicated that he had tried to subpoena Ramfis Ortega, an alleged eyewitness, who reportedly told counsel that he did not want to lose a day of work by coming to court. Counsel did not seek enforcement of the subpoena [Civil Practice Law and Rules 2308(a)], however, and attempted to introduce a notarized statement by Mr. Ortega taken November 2, 2005 in lieu of the witness, as further corroboration of claimant's and Mr. Nshimirima's testimony. Such affidavit is apparently included in a summary judgment motion before State Supreme Court, as counsel for defendant noted. At trial, the Court sustained counsel for defendant's objection to the introduction of this out-of-court statement as hearsay. See DeLuca v Blanco, 31 AD3d 600, 601 (2d Dept 2006). Accordingly, the Court has not reviewed the affidavit counsel for claimant submitted with his post-trial memorandum.

6. Vehicle and Traffic Law 1104, entitled "Authorized emergency vehicles", provides:

"(a) The driver of an authorized emergency vehicle, when involved in an emergency operation, may exercise the privileges set forth in this section, but subject to the conditions herein stated.

(b) The driver of an authorized emergency vehicle may:

1. Stop, stand or park irrespective of the provisions of this title;

2. Proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation;

3. Exceed the maximum speed limits so long as he does not endanger life or property;

4. Disregard regulations governing directions of movement or turning in specified directions.

(c) Except for an authorized emergency vehicle operated as a police vehicle or bicycle, the exemptions herein granted to an authorized emergency vehicle shall apply only when audible signals are sounded from any said vehicle while in motion by bell, horn, siren, electronic device or exhaust whistle as may be reasonably necessary . . .

* * * * *

(e) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others."

* * * * *

7. Vehicle and Traffic Law 101, defining "Authorized emergency vehicle" provides:

"Every ambulance, police vehicle or bicycle, correction vehicle, fire vehicle, civil defense emergency vehicle, emergency ambulance service vehicle, blood delivery vehicle, county emergency medical services vehicle, environmental emergency response vehicle, sanitation patrol vehicle, hazardous materials emergency vehicle and ordnance disposal vehicle of the armed forces of the United States."

8. Vehicle and Traffic Law 114-b, defining "Emergency operation" provides:

"The operation, or parking, of an authorized emergency vehicle, when such vehicle is engaged in transporting a sick or injured person, transporting prisoners, delivering blood or blood products in a situation involving an imminent health risk, pursuing an actual or suspected violator of the law, or responding to, or working or assisting at the scene of an accident, disaster, police call, alarm of fire, actual or potential release of hazardous materials or other emergency. Emergency operation shall not include returning from such service."