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Decided on September 26, 2008
Supreme Court, Monroe County
Yasmin Kabir, Plaintiff,
against
County of Monroe, MONROE COUNTY SHERIFF DEPARTMENT,
KNOWN OR UNKNOWN MEMBERS OF THE MONROE COUNTY
SHERIFF DEPARTMENT AND SUPERVISORY PERSONNEL,
MONROE COUNTY SHERIFF PATRICK M. O'FLYNN And JOHN
DiDOMENICO, INDIVIDUALLY AND AS A MONROE COUNTY
DEPUTY SHERIFF, Defendants.







2005/11613C

APPEARANCES:
Attorney for Plaintiff:
Robert L. Brenna, Jr., Esq.
Brenna, Brenna & Boyce PLLC

31 E. Main Street, Suite 2000
Rochester, New York 14614
Attorney for Defendants:
Howard A. Stark, Esq., of Counsel
Senior Deputy County Attorney
307 County Office Building
39 West Main Street
Rochester, New York 14614
Thomas A. Stander, J.
The Defendants, County of Monroe; Monroe County Sheriff Department; Known or Unknown members of the Monroe County Sheriff Department and Supervisory Personnel; Monroe County Sheriff Patrick M. O'Flynn; and John DiDomenico individually and as a Monroe County Deputy Sheriff, submit this motion seeking summary judgment dismissing the Plaintiff's Complaint and Amended Complaint; or in the alternative, partial summary judgment. Defendants also seek costs of $100 for this motion and costs of $200 for this action. In the event the complaint is not dismissed, Defendants request an order bifurcating the issues of liability and damages.
The Plaintiff, Yasmin Kabir, submits a cross-motion seeking partial summary judgment on the issue of liability against the Defendants.
This action is the result of a Consolidation Order of two separate actions involving the same event and theories of recovery. The actions were consolidated into one action, under one index number. The Defendants papers refer in their arguments to Action 1 and Action 2; however, there are no separate actions per the consolidation order. This Court will not address separate actions; instead the decision will address the consolidated action.
The Plaintiff does not oppose the Defendants' motion seeking dismissal of the complaint as against the "Monroe County Sheriff's Department," the "Known or Unknown Members of the Monroe County Sheriff's Department," and the "Supervisory Personnel." The motion of the Defendants for summary judgment dismissing the Plaintiff's Complaint as against the "Monroe County Sheriff's Department," the "Known or Unknown Members of the Monroe County Sheriff's Department," and the "Supervisory Personnel" is GRANTED.
The motion of the Defendants for summary judgment dismissing the Plaintiff's Complaint and Amended Complaint is GRANTED.
I.FACTS
On September 20, 2004, Defendant John DiDomenico was employed by Defendant Monroe County Sheriff Patrick O'Flynn as a road patrol deputy when the accident at issue occurred. Deputy DiDomenico was on routine patrol, in a marked police vehicle owned by the Monroe County Sheriff, when he received a radio dispatch from a police dispatcher to respond to a stolen vehicle report at 68 High Manner Drive, in Henrietta, New York. Deputy DiDomenico was southbound in the marked police vehicle, on West Henrietta Road, in Brighton, New York, en route to the stolen vehicle call when he overheard on his police vehicle's radio that Monroe County Sheriff's Deputy Richard Dalberth was dispatched to a burglar alarm at 52 Leo Road, in Henrietta, New York.
The burglar alarm call was given a priority one designation by the police dispatcher. Priority one [*2]is the highest priority that a call can be given. The police dispatcher requested a backup unit for the burglar alarm call. Backup is support provided by one deputy sheriff to assist the initially responding deputy sheriff on a particular call. It is standard operating procedure for backup support to be provided on priority one calls handled by Monroe County Sheriff's deputies.
Deputy DiDomenico was southbound on West Henrietta Road, approaching Brighton Henrietta Town Line Road, when he acknowledged receipt of the radio dispatch and advised the police dispatcher by radio that he would provide backup to Deputy Dalberth for the burglar alarm call, before he responded to the stolen vehicle call. A dispatch signal flashed on the mobile data terminal ("MDT") in the marked police vehicle that Deputy DiDomenico was operating. A dispatch signal indicates that a call that has been radio dispatched is being electronically transmitted with additional information. Deputy DiDomenico touched the MDT screen to view the job card. The job card provides detailed information about a particular call, including the names of cross streets, to assist in locating the address in issue.
Deputy DiDomenico did not know where Leo Road was located, so he looked down at the MDT to view the cross streets on its screen, while he was en route to the burglar alarm call. Before Deputy DiDomenico looked down at the MDT, southbound traffic on West Henrietta Road, was moving slowly in front of his vehicle. Deputy DiDomenico was traveling at approximately 25 to 30 miles an hour, in a 40 miles per hour speed limit area on West Henrietta Road, when he removed his vision from that roadway to look down at the MDT.
When Deputy DiDomenico looked back up after viewing the MDT, traffic in front of him had slowed. Deputy DiDomenico immediately applied his brakes. He was unable to stop before colliding with the automobile owned and operated by Plaintiff Yasmin Kabir at the intersection of West Henrietta Road and Brighton Henrietta Town Line Road, on September 20, 2004, at approximately 4:04 p.m.
The accident occurred moments after Deputy DiDomenico received, acknowledged and accepted the burglar alarm call. Deputy DiDomenico had not yet activated the emergency equipment, i.e., siren and flashing lights, on the police vehicle prior to colliding with Kabir's automobile. Deputy DiDomenico collided with Kabir's vehicle at a low speed and caused minor damage to the rear portion of Kabir's vehicle.
II. LAW
The relevant Vehicle and Traffic provisions are set forth.

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