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Abreu v Filippone 2009 NY Slip Op 32902(U) December 4, 2009 Supreme Court, Suffolk County Docket Number: 06-29968 Judge: Joseph Farneti Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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DJDEXNo. 06-29968 C.4L. NO. 09-001 65-MVSUPREME COURf - STATE OF NEW YORK I.A.S. PART 37 - SUFFOL,K COUNTY
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.JOSEPH FARNE'TI lctiiig Justice Supreme Court
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MOTION DATE 5-1 5-09ADJ. [)ATE 8-27-0`9Mot. Seq. ## 001 - MG # 002 - XMG

_ _ _ _ _ _____-____--_------_-------------------------- JAKUBOWSKI, ROBERTSON, MAFFEI, et al. I I ` lh 4 3 Kl-I!. `in infant over the age of I 1 Attorneys for Plaintiffs 969 Jericho Turnpike ; )ill tc`cn. b y I I S inother and natural guardian St. James, New York 11780 i U( ~i 1 I 1 A b1 N1 NEZ, and ANGELITA M. `.  ! /. ~ndividually. ROBERT P. TUSA, ESQ. Plaintiffs, Attorney for Defendant Stephanie Filippone 898 Veterans Memorial Highway, Suite 320 Hauppauge, New York 1 1?88
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against -

) i I AtTIl+ 1 ILIPPONE, THE BOARD OF
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'OWMlSSI(')NERSOF THE COPIAGUE

UREY, FUREY, LEVERAGE, et al. Attorneys for Defendants Board of Fire Commissioners & Copiague: Fire Department 600 Front Street Hempstead, New York 1 1550
CHRISTINE MALAFI, ESQ., Suffolk Cty Attorney 13y: Diana T. Bishop, Esq.. Attorneys for Defendants County of Suffolk & Suffolk County Police Department 100 Veterans Memorial Hig,hway, P.O. Box 6100 Eiauppauge, New York 11'788-0099

1 ilil DISTRIC 1'. -1 HE COPIAGUE FIRE I ) I 11 ~ R ~ N I I ~ N T ,COUNTY OF SUFFOLK HE I

O X COUNTY POLICE 1 ) I 1' l R 1 M E N ` I

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Defendants.

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I lpo I the lollowing papers nuinbered 1 to 8 read on this motion for summary ludgment, Notice of Motion/ Order to 8 a n d suppoiting papers 1 - 30 ; Notice of Cross Motion and supporting papers 3 1 - 58 ; Answering Affidavits and ppoiiing papel 28 1 82 -83 , Replying Affidavits and supporting papers 84 - 85, 86 - 87 ; Other memorandum of law, 'x l i m k k r i ? ) It is, ~ l ~
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O ~ I ~ ~ L Fire L I C

ORDERED that the motion by the Board of Fire Commissioners of the Copiague Fire District, the District, and the Copiague Fire Department for summary judgment, pursuant to CPLR -' I S granted: arid it is further 0 R . D ERED that the cross-motion by the County of Suffolk and the Suffolk County Police

i c p r ! m c n t . tor surnmaryjudgment, pursuant to CPLR 321 2, is granted; and it is further

0R.D.ERED that this action is severed and continued against defendant Stephanie Filippone.

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( 11: `VOL cnihcr 5 . 2005, infant plaintiff Kelvin Abreu mas riding his bicycle on Csibota Avenue in I ~ l ~ ~I,c\ )'oiuk, when he was struck by a motor vehicle driven by defendant Stephmie Filippone. c ~ ~ c ~ ~ h ~ c ~ i i i e t i tmother, plaintiff Angelita Nunez, suing individually and on behalf of her son, tiis l ~ ) i ~ i n i c ~ tci d dction against defendants. Plaintiffs allege in their complaint that defendants County of i `3 11 toll*. $ i i ~ T o I l , County Police Department, the Board of Fire Commissioners of the Copiague Fire i )111 i i i . ` I n d the C`opiague Fire Department were negligent and reckless in their supervision and 1: i m a p m c nt ) t traffic after a motor vehicle accident, and that such negligence proximately caused i t L fcn&int 1 4 1 1 ppone's vehicle to strike the infant plaintiffs bicycle. Defendant Filippone asserts crossi i n ,igains[ the co-defendants alleging that the infant plaintiff's injuries were caused by their 1 LgIy nc`c Lc.
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Iktcndants [he Board of Fire Commissioners of the Copiague Fire District and the Copiague Fire ierein;ifier collectively known as "Fire Department") now move for summary judgment i m i s w i g io1 iintiff ' claims, arguing that they did not owe a special duty to the infant plaintiff, and that *'icrci , n o ekidence that they violated any of their rules, regulations, or guidelines. In support thereof, IC! subniit a copy ofthe pleadings, the infant plaintiffs medical records, copies of the police accident ; .yx)r1 a n d ~riinscripts the deposition testimony of police officers Michael Koubek and Michael of w - L m ~ t hTlicy also submit transcripts of the deposition testimony of the infant plaintiff, defendant ~ ! ! I i p p m e ~ Arthur Steigert, a fire chief. an;1
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Ikt;:r dants County of Suffolk and the Suffolk County Police Department (hereinafter collectively County") cross-move for summary judgment dismissing plaintiffs' claims, arguing that I iierc t as no special duty between the Police Department and the infant plaintiff, that it Idid not assume a , : i i i ? io prolcct the infant plaintiff, and that it is entitled to absolute government immunily for discretionary , I hc County`s submissions in support of the cross-motion include, among other things, a copy of the ~~ieadiiigs, transcripts of deposition testimony of the infant plaintiff, plaintiff Angelita Nunez, Officer and lubc h. OifficcrTuransky, Officer Edmond McDowell, and defendant Filippone. They also submit rihi,to::raphs ) f the wbject accident scene and copies of the police accident report.
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l'lain11f3.x oppose the motion by the Fire Department and the cross-motion by the County, arguing

cenaiii circumstances a municipality may still be liable even if there is no special relationship the plaintii'f'andthe municipality. In support thereof, plaintiffs submit, among other things, the i  i t d ingx, copies oi'the police accident report, a transcript of`the deposition testimony of the parties, and I ) ~ I L `  o f the infant plaintiffs medical records. Defendant Filippone also opposes the motion and crossi t o 1 )ii bi her co-defendants.
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t h i < , cu~mination before
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trial, Michael Koubek, a Suffolk County Police Officer, testified that

ncltilicd him of a motor vehicle accident involving an overturned vehicle on Dixon Avenue. He ~ : ~ i i ! i i : d that I)i.ion Avenue in Copiague, New York, runs east and west, and has two lanes of travel in x t i clircction, as well as a center turn lane. He testified that when he arrived at the accident scene, he d k c d his  rhiclc perpendicular to Dixon Avenue to block eastbound traffic on Dixon ,4venue. He

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that he was in charge of the accident scene in terms of controlling the direction of traffic r i ~ < iLi`l el )Ilicer Koubek testified that prior to the accident involving plaintiff, no one from the Fire I ~cp,ir tiiient u as directing traffic. He testified that Officer McDowell placed cones and flares on the ,' i  t h iiind laiics of' I Xxon Avenue between Verrazano Avenue and Cabota Avenue. He lurther testified I ' A I 1; t teen m ~nutes after arriving at the accident scene, he heard a motor vehicle skidding and a "thump," il i,ir :r icariicd that defendant Filippone's vehicle had collided with plaintiff, who was riding his bicycle.
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hi cumination before trial, Officer Edmond McDowell testified that when he arrived at the %iLcic1crit. used his vehicle to block eastbound traffic on both lanes of Dixon Avenue between he
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m d Cabota Avenue. He testified that he also placed cones and flares across the lanes I 1 > 1  , 1 ) i i 4 vtnue to prevent eastbound traffic from entering. He further testified that vehicles were I I / O L ~ L Y !tc) traccl wcstbound on Dixon Avenue at the location of the accident. Officer NlcDowell testified led pedestrians walking on the sidewalk near the accident scene, and that he put up police ipc i prevent theni from entering that area. He testified that he observed the infant plaintiff riding his dc:rosi, Ihe edstbound lanes of traffic on Dixon Avenue. He testified that the infant plaintiffs passe1 bchiiid the rear of an ambulance, and then was struck by defendant's vehjcle.
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21 1-11> examination before trial, Arthur Steigert testified that at the time of the subject accident he i.f-ie1o f t h e Copiague Fire Department, and that traffic at an accident scene is generally the li.pcmibilit> of tht. police department. He testified that when he arrived at the first accident scene he i~ci~kc~~ his ~,eliicle the center turn lane on Dixon Avenue. He testified that the subject accident between in
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i 1 i a i n t i f f ` a n d defendant Filippone occurred on the westbound lane of Dixon Avenue.

fie. examination before trial, defendant Filippone testified that she was familiar with the area t lei t t rhc sul)lec~ accident occurred, as she drove through that area frequently. She testified that she was I a cling thir!? miles per hour at the time of the accident. She testified that as she was traveling in the left

:c5thound lane of Ilixon Avenue, she observed the accident scene. She testified that she saw "two p l o w fire trucks, and an ambulance in the center turning lane," and that the accident scene was closed 7 1 1 I 11h tape  Filippone testified that as she passed the emergency vehicles, a bicyclist came out from v l i i i i d the ainbulance, and her vehicle struck the bicyclist. She further testified that prior to the subject tccidcnt shc did not observe any cones or flares at the accident scene, and that there was no one directing a f fit. eamination before trial and 50-h hearing, plaintiff testified that he was riding his bicycle 10ii-i l i t < brother's house and intended to return home. He testified that he was not wearing a helmet, and 1 1 ~ 1 7 !ii docs riot reinember the events that occurred after he left his brother's house.
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1 rai'f c regulation, including the placement of road flares, is a classic example o f a governmental
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uridxtakeii for the protection and safety of the public pursuant to general police powers (see

I._'r*Xt.vt Sifczteqf Aew York, 3 AD3d 470, 771 NYS2d 132 [2004]). A municipality may not be liable for iicrl:rionarq acts cif a municipal or public employee absent a special relationship between the plaintiff

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n i w i i c i p a l i l ! (,teeMcLenn vCityofNew York, 12NY3d 194, 905 NE2d 1167 [2009]; Garrettv

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lnns . 5 8 hY2d 253, 447 NE2d 717 119831).
hc t L ur cleinents that are required to establish a special relationship are: (1) an assumption by the
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promises or actions, of an affirmative duty to act on behalf of a party who was t i i e.1 ( 2 )hiiou ledge on the part of the municipality's agents that inaction could lead to harm; (3) some 1 Lr>u iii direct contact between the municipality's agents and the injured party; and (4) th.at party's I ii.ihlt. rc:liallce on the municipality's affirmative undertaking (see Kovit v Estate of Hallums, 4 NY3d "07 YJ'S2d 20 [2005]). Absent such a showing, "the proper allocation of public resources and ~ i l o t ~p e l i x  e n ices is a matter for the executive and legislative branches to decide" (De Long v lo I o m g + Erie. 60 VY2d 296, 469 NYS2d 61 1 [ 19831). The special duty rule is limited in cases of I  o11 ,ng nlmfcasarice, where the municipality is alleged to have failed to take any action in breach of -ctinc generd duty imposed by law or voluntarily assumed for the benefit of the public a:; a whole Rodriguez I! City qf New York, 189 AD2d 166, 595 NYS2d 421 [ 19931).
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iIerc. the conduct of the police officers, including placement of road flares, cones, and tape at the
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jcene, constituted a government function (see Eckert v State oflvew York, supipa; Repass v City 288 AD2d 286, 733 NYS2d 210 [2001]). The County made apvima facie showing of .tititlcnient to sumniary judgment by demonstrating that a "special relationship" did not exist between the ' Iiiiiicipality a i d the infant plaintiff (see Kenavan v New York, 70 NY2d 558, 517 NE2d 872 [1987]; 'wiitoro 1' C'it)*of h e w York, 17 AD3d 563, 795 NYS2d 60 [2005]).
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In opposition, plaintiffs failed to establish the elements of a special duty (see Gonzalez v County r t f Siqfblk. 3 28 AD2d 41 1, 643 NYS2d 65 1 [ 19961; Cuffy v New York, 69 NY2d 255, 5 13 NYS2d 372 I 087 ) I1d e r the circumstances, there was no special relationship between plaintiffs and the County as t l ? c * i c.as no direct contact between the Police Department personnel with the infant plaintiff prior to his Ic*cidcnt, arid there was no justifiable reliance by the infant plaintiff (see Repass v City c;fNew York, CuJfji' City of New York, supra; Merced v City of New York, supra). The evidcnce demonstrates t i u t J I I ) alleged negligence of the County in directing traffic merely set the scene for the second accident, '>.I: ~i t re provimate cause of the accident (see Saviano v City of New York, 5 AD3d 58 1, 774 a riol J'S2d 82 1;004]) Moreover, tort suits that test the course of action undertaken by the police in iirlhci ance cf public safety are disfavored because they implicate choices about the allocation of finite ~ ~ l i resotirces that are better left to the discretion of the policy makers (see Balsam v Delma Elzg'g cc orp 00 W K d 966. 665 NYS2d 613 [1997]). Accordingly, the cross-motion by the County for .tiinniLir~ Iiidgment dismissing the action against it is granted
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tieienclant Fire Department, section 20s-b of the General Municipal Law provides as o ~ l o<. "/lt-mbers of duly organized volunteer fire companies in this state shall not be liable civilly for ~~ :PI t o r iic s donc. by them in the performance of their duty as volunteer firemen, except for wilful i c g l i g e n i e o r ma1ti:asance." Here, defendant Fire Department has made aprima facie showing of nt11lin1c:nt t summary judgment by demonstrating that it was not wilfully negligent in its duties at the
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cidtwt ccne. The deposition testimony of Steigert, the fire chief, and of the police officers, nioiitr,tte that thc Firc Department personnel were not involved with directing traffic during the subject icii'iit c ~ n {hat i t was not their responsibility to do so. In opposition, plaintiffs failed to come forward d it 111 A I ) LV ~cicnce support the claim of wilful negligence or malfeasance as to the conduct of defendant to i t i ' i )cpartrn:nt (('eO'Lenry v Greenport Fire Dep't, 276 hD2d 539, 714 NYS2d 451 [2000]). ;01 ~iingl;, thc motion by defendant Fire Department for summary judgment dismissing the complaint . .iiii`,` i t I  g-anted l'he action is severed and shall continue against the remaining defendant, Stephanie
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__ FINAL DISPOSITION

Acting Justice Supreme Court

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NON-FINAL DISPOSITION



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