Salim Randall,
Plaintiff,
against
Charlene Morand, Defendant.
|
7471/2013
Robert J. McDonald, J.
This is a personal injury action in which plaintiff, Salim Randall, a police officer
with the New York Police Department, seeks to recover damages for injuries he allegedly
sustained when he was injured in the course of making an arrest. On December 15, 2012,
the plaintiff, along with his partner, effected a traffic stop of the defendant, Charlene
Morand, on Bergen Street at the intersection of Bedford Avenue, Kings County, New
York. The plaintiff alleges that he was injured in the line of duty when he was kicked by
the defendant during what he describes as a lawful [*2]arrest. Plaintiff alleges that as a result of the incident he
sustained, inter alia, a torn meniscus of the left knee requiring arthroscopic surgery.
The plaintiff commenced this action by filing a summons and complaint on
April 17, 2013. The complaint asserts a cause of action for negligence alleging that the
plaintiff was injured while attempting to arrest the defendant when the defendant's
vehicle struck the plaintiff. The complaint alleges that the defendant violated Penal Law
§§ 205.30 (resisting arrest), 120.20 (reckless endangerment in the second
degree), and 120.00(2) (assault in the third degree). The complaint states that the plaintiff
was injured when the defendant resisted arrest, recklessly engaged in conduct which
created a substantial risk of serious physical injury to the plaintiff, recklessly caused
physical injury to the plaintiff, and caused her vehicle to strike the plaintiff.
The complaint also alleges a cause of action pursuant to GML 205-e in that
the plaintiff was injured because the defendant violated certain Vehicle and Traffic Law
provisions. The plaintiff's supplemental bill of particulars, dated December 22, 2014,
alleges that the defendant violated Vehicle and Traffic Law §§ 375
(12-a)(a)-(b)[driving with heavily tinted windows) and 402(1)(b)[obscured license plate],
which violations were indirectly related to the plaintiff's injuries.
The plaintiff's bill of particulars alleges that the defendant was negligent in
attempting to prevent a police officer from effecting a lawful arrest, failed to obey the
lawful orders of a police officer, recklessly engaged in conduct creating a substantial risk
of physical injury to the plaintiff, and caused the defendant's vehicle to strike the
plaintiff.
Issue was joined by service of defendant's answer on July 5, 2013. The
answer contains an affirmative defense which alleges that the action is barred by General
Municipal Law (GML) § 205-e. Plaintiff filed a Note of Issue on September 11,
2014. This matter is presently on the calendar of the Trial Scheduling Part for July 23,
2015.
In his examination before trial taken on June 30, 2014, Police Officer Salim
Randall, age 37, states that at the time of the subject incident he was assigned to
Brooklyn North Taskforce Anticrime Unit. On December 15, 2012, he was on patrol
with his partner in a marked police vehicle. He testified that he stopped the defendant's
vehicle at the corner of Bergen Street and Bedford Avenue because he observed that the
license plate of the [*3]vehicle was covered by a bumper
guard and also because the windows were tinted, both violations of the Vehicle and
Traffic Law. The police vehicle pulled up behind the defendant's vehicle and the plaintiff
approached the defendant's driver side door. The officer asked for her paperwork and she
allegedly responded "I am late for work. I don't have time for this shit." She then showed
the officer her identification as a Fire Department EMT and handed over her license and
registration. The officer then asked her to roll her window half way down so that he
could test the window with his tint meter. His meter showed that the tinting was over the
legal limit.
Officer Randall then went back to his vehicle to run defendant's license plate
through his computer and to issue a summons for having an obstructed license plate and
tinted windows. While he was in the process of writing the summons, the defendant
exited her vehicle, approached the window of the police vehicle and began to yell and
curse at him. He instructed her to get back into her vehicle and she complied. However,
she exited her vehicle again and came back to his vehicle to again yell and curse at him.
He again ordered her back into her vehicle. She then exited her vehicle a third time and
he told her if she came back again she would be arrested for disorderly conduct. She
responded, "you ain't gonna do shit," at which point Officer Randall stepped out of the
police vehicle and advised Ms. Morand that she was under arrest and told her to put her
hands behind her back. As he reached for her arm she ran back towards her vehicle.
He chased her back to her car and she sat back down in the driver's seat with
her legs hanging out. He grabbed her arm to try to pull her out and she scratched his left
hand. She also leaned back in the vehicle and began to kick in an upwards direction with
both legs like bicycle kicking. He testified that he was kicked ten to fifteen times in his
midsection, groin, and knees. Another officer who responded to the scene, pulled the
defendant out of the vehicle and assisted the plaintiff in handcuffing the defendant.
Randall then placed the defendant in the police vehicle and drove her to the 77th
Precinct. He stated that the defendant's vehicle never struck any part of his body and he
never reported that he was struck by her vehicle. He prepared an incident report, an aided
card, and filed charges against her. The top charge lodged against her was assault against
a police officer. His Sergeant prepared an injured in the line of duty report. He had
complained to his sergeant that he injured his left knee. He then sought medical attention
at Wycoff Hospital. He received x-rays at the hospital which were negative for fractures.
An MRI taken approximately two months later showed [*4]a torn meniscus of the left knee.
The examination of Charlene Morand, a certified paramedic and licensed
EMT, age 30, was taken on June 30, 2014. She stated that she is employed by the New
York City Fire Department Station 57 in Kings County. She was convicted of disorderly
conduct as a result of the December 15, 2012 incident. She stated that she had been at her
sister's house and was on her way to work when she was pulled over by the plaintiff's
police vehicle. She came to a complete stop right before the intersection with Bedford
and Bergen. She stated that she was operating an Acura that was leased and had tinted
windows. She also had a bumper guard that covered the license plate. She stated that the
plaintiff approached her driver's side window. She showed him her EMT identification
and handed him her license, registration and insurance card. She denied that she cursed
or yelled at him but she did tell him she was going to be late for work. She also got out of
the vehicle to put the bumper guard away. She stated the police officer approached her
and told her not to get out of the vehicle. She stated that she got back in the vehicle and
closed the door. She stated that the officer threatened to arrest her and then opened her
door and pulled her by the wrist and twisted her arm, causing a sprained wrist. She stated
that she was yanked out of her vehicle and thrown against the car and did not kick him.
She stated that she never touched his body with her legs. She stated that she never struck
the officer with any portion of her body such as her hands, elbows or knee. She stated
that as a result of the arrest she was suspended from her job for 30 days with no pay and
restricted from patient care for six months.
The police department line of duty injury report states that "while making a
lawful arrest, the defendant intentionally scraped my left hand and kicked my left leg
causing lacerations and pain and swelling."
The defendant now moves for an order pursuant to CPLR 3212(b), granting
summary judgment on the issue of liability and dismissing the complaint. In support of
the motion, plaintiff submits an affirmation from counsel, Jason M. Bernheimer, Esq; a
copy of the pleadings; a copy of the plaintiff's verified bill of particulars; a copy of the
plaintiff's line of duty injury report; a copy of the police aided card; and a copy of the
transcripts of the examinations before trial of plaintiff, Salim Randall, and defendant,
Charlene Morand.
Defendant alleges that the deposition testimony demonstrates that the officer
was not struck by and was not contacted by the defendant's motor vehicle as alleged in
the complaint and that if [*5]he did sustain an injury it
was incident to making a lawful arrest. Thus, counsel claims the cause of action for
negligence must be dismissed.
Further defendant alleges that the action is barred byGeneral Municipal Law
§ 205-e in that any statutory violations allegedly violated by the defendant, e.g.
Vehicle and Traffic Law equipment violations, were not directly or indirectly a
proximate cause of the plaintiff's alleged injuries and did not increase the risks inherent
in the police work. Defendant asserts that to the extent Randall claims liability under
GML 205-e, the predicate statutory violations, based upon Vehicle and Traffic Law
equipment violations, did not cause the injury or increase the risks associated with police
work. Pursuant to GML 250-e, a police officer may not recover for injuries sustained due
to the increased risk caused by the peculiar nature of police duties of police activity
unless the increased risk of police activity results from a statutory violation that
proximately caused the injury to the officer.
Thus, counsel argues, the cause of action alleging a violation of GML 250-e
must be dismissed as there is no question of fact that the statutory violations, e.g. tinted
windows and a blocked license plate were not the proximate cause of the plaintiff's
injuries, but rather, were only the occasion which led to the traffic stop. Citing Blake v City of New York, 109
AD3d 503 [2d Dept. 2013], counsel asserts that when a police officer alleges a
statutory violation but fails to allege how his injury arose from a recognized hazard
related to that statutory violation, the officer does not have a valid claim under GML
250-e. Defendant argues that the obscured license plate violation and tinted windows
violation cannot, under the facts of this case, be considered a safety issue for a police
officer that increased the risks normally associated with police work. Rather, the claimed
injuries were sustained because the defendant allegedly resisted arrest. Further, counsel
argues that when an officer is injured in a scuffle durng an arrest the GML 205-e claim
must fail absent a statutory violation directed at a safety issue that contributed to the
arrest because the apprehension of a suspect is a function particularly within the scope of
usual police duties (see Wawrzyniak v Sherk, 170 AD2d 972 [4th Dept.
1991]).
In opposition, plaintiff's counsel Joseph L. Decolator, Esq., asserts that GML
205-e claims may be predicated upon the alleged violations of relevant VTL violations
(citing Gonzalez v Iocovello, 93 NY2d 539 [1999]). Plaintiff asserts, therefore,
that pursuant to GML § 205-e there is a question of fact as to whether the VTL
sections violated by the defendant, e.g. tinted [*6]windows and obscured license plate, had a practical or
reasonable connection with the injuries sustained by the plaintiff during the course of
making an arrest of the defendant. Counsel argues that the violations which occasioned
the need for the police officer's presence at the scene are sufficient to establish liability
under GML § 205-e. Counsel contends that the plaintiff need only show that the
statutory or code violations played "some part" in bringing about his injuries. Counsel
argues that becuase the VTL violations brought about the need for plaintiff's presence at
the location, he has established an indirect and reasonable and practical connection
between the VTL violations and the injuries (citing Giuffrida v Citibank Corp.,
100 NY2d 72 [2003][[the substantial case law that has developed on the subject holds
that a plaintiff need only establish a "practical or reasonable connection" between the
statutory or regulatory violation and the claimed injury]; Clow v Fisher, 228
AD2d 11 [3rd Dept. 1997][proving that the defendant's violation was an "indirect cause"
does not require the same amount of proof as proximate cause in common-law
negligence, but requires a practical or reasonable connection between the statutory or
regulatory violation and the injury ]; Aldrich v Sampier, 2 AD3d 1101 [3rd Dept. 2003] [GML
205-e cause of action sustained when policeofficer was injured in an accident while
pursuing a defendant for reckless driver as an indirect cause of the injury]). Thus,
plaintiff argues that because the defendant's violations of the VTL "occasioned" the
plaintiff's presence at the scene, there is a connection between the violations and the
plaintiff's injuries. (Citing Cerati
v Berrios, 61 AD3d 915 [2d Dept. 2009 ][the defendant failed to establish,
prima facie, the lack of connection between the statutory violation at issue and the
plaintiff's injuries]).
Upon review of the defendant's motion, the plaintiff's opposition and the
defendant's reply thereto, this court finds as follows:
The proponent of a summary judgment motion must tender evidentiary proof
in admissible form eliminating any material issues of fact from the case. The failure to
make that showing requires the denial of the motion regardless of the sufficiency of the
opposing papers (see Mastrangelo v Manning, 17 AD3d 326 [2nd Dept 2005]).
If the proponent succeeds, the burden shifts to the party opposing the motion, who then
must show the existence of material issues of fact by producing evidentiary proof in
admissible form, in support of his position (see Zuckerman v City of New York,
49 NY2d 557 [1980]).
Here, the defendant established her prima facie entitlement [*7]to judgment as a matter of law on the issue of liability by
demonstrating that there is no evidence in the record that plaintiff's injury was directly or
indirectly caused by a violation of either VTL 375 (12-a)(a)-(b)[driving with heavily
tinted windows) or 402(1)(b)[obscured license plate] upon which his Municipal Law
§ 205-a claim is predicated (see Williams v City of New York, 2 NY3d 352 [2004]).
In order to assert a claim under GML § 205-e, a plaintiff "must [1]
identify the statute or ordinance with which the defendant failed to comply, [2] describe
the manner in which the police officer was injured, and [3] set forth those facts from
which it may be inferred that the defendant's negligence directly or indirectly caused the
harm" (Williams v City of New
York, 2 NY3d 352 [2004] quoting Giuffrida v Citibank Corp., 100
NY2d 72 [2003]; also see Gammons v City of New York, 24 NY3d 562 [2014]).
To establish a prima facie case under the statute, plaintiff must, in addition to
demonstrating violation of relevant statute, ordinance, or regulation, establish practical or
reasonable connection between violation and injury to an officer (see Gover v Mastic Beach Property
Owners Association, 57 AD3d 729 [2nd Dept 2008]; Campbell v City of New York,
31 AD3d 594 [2d Dept. 2006]; Campagna v Arleo, 25 AD3d 528 [2d Dept. 2006]; Fahey v Serota 23 AD3d
335 [2d Dept. 2005]).
The Court of Appeals has held that, to satisfy the requirement of direct or
indirect causation, the plaintiff need only establish a "practical or reasonable connection"
between the violation and the plaintiff's injuries (Zanghi v Niagara Frontier Transp.
Commn., 85 NY2d 423 [1995]; Giuffrida v Citibank Corp., 100 NY2d 72
[2003]; Cerati v Berrios, 61
AD3d 915 [2d Dept. 2009]).
Here, this Court finds that the Vehicle and Traffic Law violations for which
the plaintiff was stopped had no practical or reasonable connection to the injuries
allegedly sustained by the officer. Although the officer was present at the scene of the
incident because he stopped the defendant's vehicle for having excessively tinted
windows and an obscured license plate, neither the tinting of the windows nor the
covering on the license plate was directly or indirectly connected to the officer's injury.
Rather, the injury occurred, according to the officer's testimony, after the vehicle was
stopped, after the plaintiff's windows had been rolled down and tested for tinting, and
after the defendant refused to obey the officer's lawful commands to [*8]remain seated in her vehicle. According to the officer's
testimony, the injuries occurred while he scuffled with the defendant in attempting to
make the arrest. Thus, the tinting on the windows only occasioned the police stop but had
no reasonable connection to the police officer's injury. The officer was injured following
the stop while making a lawful arrest for failing to obey the officer's commands. The
arrest was not in any way related to the VTL violations as it might have been had the
officer been injured because he could not see into the vehicle due to excess tinting.
It has also been held that the apprehension of criminal suspects is a function
particularly within the scope of police duties (Wynne v Tullman, 151 AD2d 476
[2d Dept. 1989]). Thus, even giving broad application to the GML 205-e claim, the
moving defendant has established her prima facie entitlement to judgment as a matter of
law by demonstrating the lack of any "practical or reasonable" connection between the
alleged statutory violation and plaintiff's injuries since the tinted windows and obscured
license plate did not directly or indirectly cause the police officer to injury his knee.
Rather, he was injured in the course of the performing his usual duties (see Cotter v Pal & Lee Inc,
86 AD3d 46 [1st Dept. Kenavan v City of New York, 267 AD2d 355 [2d
Dept. 1999]).
In opposition to defendant's prima facie showing, plaintiff failed to raise a
triable issue of fact as to whether there was a practical or reasonable connection between
the alleged violations of the Vehicle and Traffic Law and the injuries sustained (see Driscoll v Tower Assoc., 16
AD3d 311 [1st Dept. 2005]).
Secondly, the cause of action contained in the complaint for negligence due
to the negligent operation of the motor vehicle by the defendant is dismissed. It is not
disputed that the officer was injured in a scuffle with the defendant and not when the
defendant struck him with her vehicle as alleged in the complaint. Thus, the defendant's
operation of the vehicle at the time in question was not a proximate cause of the
plaintiff's injury.
Accordingly, based on the foregoing, it is hereby,
ORDERED, that the defendant's motion for summary judgment dismissing
the plaintiff's complaint in its entirety is granted, and it is further,
ORDERED, that the Clerk may enter judgment accordingly.
Dated: June 2, 2015
Long Island City, NY
_______________________
ROBERT J. MCDONALDJ.S.C.