Glitman v. NYS

The following papers were read on defendant’s motion to dismiss pursuant to CPLR 3211 and motion for summary judgment pursuant to CPLR 3212: 1. Notice of Motion filed June 9, 2021. 2. Affirmation of Suzette Corinne Merritt, affirmed June 9, 2021, with Exhibits A-C annexed. 3. Affirmation in Opposition of Peter P. Balouskas, Esq., affirmed August 9, 2021, with Exhibits 1-5 annexed. Filed papers: Claim, Answer The claim seeks damages for conscious pain and suffering, fear of impending death, and wrongful death, arising from the death of Emily R. Wootton in a head-on collision with an intoxicated driver on Route 9G in the Town of Rhinebeck at approximately 6:00 p.m. on December 7, 2018. The claim alleges negligence and recklessness by defendant arising from the actions of New York State troopers an hour earlier when, after finding Mr. Dancy on the side of the road and out of gas, transported him to a gas station to obtain gas then returned him to his car despite his obvious impairment. In a single motion, defendant moves to dismiss the claim pursuant to CPLR 3211, and for summary judgment pursuant to CPLR 3212.¹ Claimant opposes. Defendant argues in support of dismissal that the claim fails to state a cause of action for negligence because the allegations show the troopers were engaged in a discretionary government function, and the claim fails to allege a special duty was owed to the deceased by defendant under the circumstances. The motion for summary judgment is based on the affirmative defense of governmental immunity for the troopers’ actions. Claimant argues in opposition that: the motion is premature pursuant to CPLR 3211(d) and 3212(f); and the State’s liability flows from the special duty that arose through the affirmative negligent act of the State troopers enabling Mr. Dancy, who was visibly intoxicated, to drive his vehicle. On a motion to dismiss pursuant to CPLR 3211(a)(7), the claim is to be afforded a liberal construction, the facts alleged are presumed to be true, the claimant is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see CPLR 3026; Goldman v. Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005] [internal quotation marks and citations omitted]; Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). “Whether a [claimant] can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). The motion is supported by an attorney’s affirmation and the pleadings. The claim (Ex. B to Merritt Aff.)² contains the following material allegations of fact: “The Claim arises from a two car crash that occurred at approximately 9:10 pm on December 7, 2018.³ The crash took place on State Route 9G approximately 50′ north of Vlei Road, in the Town of Rhinebeck, Dutchess County, State of New York. Immediately before the crash, Robert J. Dancy, was operating a 1997 Ford Explorer generally southbound on State Route 9G. Decedent, Emily R. Wootton, was operating a 2007 Chevrolet Cobalt generally northbound. The crash occurred when Robert J. Dancy crossed the highway’s center and collided head-on with the motor vehicle operated by the decedent. At the time of the crash, Robert J. Dancy, was significantly and obviously impaired by alcohol, drugs and/or other intoxicants. Less than one hour before the crash, Robert J. Dancy, was found by New York State Troopers along the same highway after Mr. Dancy’s motor vehicle ran out of gas. He was assisted by New York State Troopers who brought him, in their patrol vehicle, to a local gas station, aided him in placing gas in a carry gas can, transported him back to his disabled motor vehicle and released him to fill his gas tank, to again operate his motor vehicle despite his significant and obvious impairment, and to proceed to the location of the subsequent crash. All the while, Mr. Dancy was significantly and obviously intoxicated or otherwise impaired. As the result of the crash, Mr. Dancy killed Emily R. Wootton…” The claim also alleges that the troopers failed to comply with rules, regulations, protocol and training by failing to take steps necessary to assess the condition of Mr. Dancy, in releasing him and in failing to protect the deceased and the traveling public (Ex. B at 6). In opposition to the motion, claimant submits an attorney’s affirmation (Balouskas Aff.)⁴ annexing five exhibits. A court may freely consider affidavits submitted by the claimant to remedy any defects in the claim (see Nonnon v. City of New York, 9 NY3d 825, 827 [2007]), and may assess the claim “in light of the evidentiary material submitted in conjunction with the CPLR 3211 motion” (Bello v. Cablevision Sys. Corp., 185 AD2d 262, 263 [2d Dept 1992], lv denied 80 NY2d 761 [1992]; see CPLR 3211[c] [allowing either party to submit admissible evidence]; Chrysler Capital Corp. v. Hilltop Egg Farms, Inc., 129 AD2d 927, 928 [3d Dept 1987] [finding lower court properly considered attorney's affirmation with attached contract opposing motion to dismiss under CPLR 3211(a)(7)]). Where evidentiary material is considered, the question is whether claimant has a cause of action (see Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]). Exhibit 1 is a certified copy of the police records containing, inter alia, the transcript of Investigator Chad Greer’s December 7, 2018 oral application, made under oath at 9:30 p.m., for issuance of a court order compelling Mr. Dancy to provide a blood sample for chemical analysis (Ex. 1 at 87-110). The investigator states that Mr. Dancy smelled of alcohol at the scene of the crash, and a Breathalyzer test showed his blood alcohol level was .18 percent. After blood was taken at 9:41 p.m. and two vials of blood were analyzed, the toxicology report shows blood alcohol levels of .146 percent and .20 percent and a positive result for marijuana (Ex. 5).⁵ The records also contain a statement by Ruth Martz, an employee at the gas station where the troopers brought Mr. Dancy before the crash, that she smelled alcohol “coming from his body” (Ex. 1 at 107). In order to prevail on a negligence claim, “a [claimant] must demonstrate (1) a duty owed by the defendant to the [claimant], (2) a breach thereof, and (3) injury proximately resulting therefrom” (Solomon v. City of New York, 66 NY2d 1026, 1027 [1985]).” ‘When a negligence claim is asserted against [the State], the first issue for a court to decide is whether the [State] was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose’ ” (Santaiti v. Town of Ramapo, 162 AD3d 921, 923 [2d Dept 2018], quoting Applewhite v. Accuhealth, Inc., 21 NY3d 420, 425 [2013]). “Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the [claimant], apart from any duty to the public in general” (McLean v. City of New York, 12 NY3d 194, 203 [2009]). If the court determines that the State was acting in a proprietary capacity, the State “is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties” (Wittorf v. City of New York, 23 NY3d 473, 479 [2014] [internal quotation marks omitted]). If the action challenged in the litigation is governmental, the existence of a special duty is an element of the claimant’s negligence cause of action (see Lauer v. City of New York, 95 NY2d 95 [2000]). It is not claimant’s burden to plead and prove that the troopers’ conduct was ministerial, as opposed to discretionary (see Santaiti at 928 [proof that conduct was discretionary is necessary to establish affirmative defense of governmental immunity]). “A government entity performs a purely proprietary role when its activities essentially substitute for or supplement traditionally private enterprises” (Applewhite at 425 [internal quotation marks omitted]). “In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers” (id. [internal quotation marks omitted]). “Police and fire protection are examples of long-recognized, quintessential governmental functions” (id.; see Valdez v. City of New York, 18 NY3d 69, 75 [2011]). Even so, the Court of Appeals observed in Miller v. State of New York (62 NY2d 506, 511 [1984]), “[a] governmental entity’s conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions.” “The relevant inquiry in determining whether a governmental agency is acting within a governmental or proprietary capacity is to examine ‘the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred’ ” (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 447 [2011], rearg denied 18 NY3d 898 [2012], cert denied sub nom. Ruiz v. Port Auth. of NY & N.J., 568 US 817 [2012], quoting Miller at 513). Defendant likens the troopers’ unorthodox conduct to police acts of traffic regulation, citing to New York cases in which police decided whether to assist a disabled motorist⁶, whether to replace flares at an accident scene,⁷ and in which police released a driver after an accident who was involved in a subsequent accident while intoxicated.⁸ The “specific act” (Miller at 513) alleged here is that the troopers drove a motorist, whose vehicle was out of gas, to a gas station, helped him fill a gas can, then took him back to his vehicle. Although this type of aid is comparable to the services provided by roadside assistance entities, it falls within the context of aiding a disabled motorist and is governmental in nature. However, that the motorist was allegedly intoxicated is relevant to the issues of special duty, breach and proximate cause. The Court of Appeals explained in McLean that a special duty “is ‘born of a special relationship between the [claimant] and the governmental entity’ ” (McLean at 199, quoting Pelaez v. Seide, 2 NY3d 186, 198-199 [2004]). As the Court stated in Pelaez and reiterated in McLean, ” ‘A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation’ ” (McLean at 199, quoting Pelaez at 199-200 [citation omitted]). Defendant argues that the claim’s allegations show only the troopers’ duty to the general public to regulate traffic and aid disabled motorists. Claimant relies on the third category of special relationship to argue that a special duty arose through the affirmative act of the State troopers helping Mr. Dancy obtain gas so he could drive his vehicle while allegedly intoxicated. The court finds the claim sufficiently alleges a special duty. Without gas, Mr. Dancy was unable to drive. If the troopers had not taken any action to exert control over the situation, no special duty would have been created (see De La Paz v. City of New York, 294 AD2d 327, 328 [2d Dept 2002] [no special duty where police told occupants of disabled vehicle they would call a tow truck and did not take control of the scene]). Instead, the troopers here allegedly took “positive direction and control in the face of a known, blatant and dangerous safety violation” (McLean at 199, quoting Pelaez at 199-200 [citation omitted]; see Delanoy v. City of White Plains, 122 AD3d 663, 664 [2d Dept 2014] [city inspector took positive control of a known and dangerous situation by directing [claimant] to perform unsafe test]). Defendant also argues that the claim does not allege sufficient facts to establish the elements of breach and proximate causation. Although the troopers’ acts did not directly cause the crash, they “set[] in motion a chain of events leading to the injury” (Youngblood v. Village of Cazenovia, 118 Misc 2d 1020 [Supreme Court, Madison County 1982], affirmed by 93 AD2d 962 [3d Dept 1983], quoting New York Jurisprudence [Municipal Corporations, §974]). It was reasonably foreseeable that by actively helping an allegedly intoxicated driver obtain gas, the driver would then be able to drive his vehicle, thereby endangering motorists on the road near him. Defendant points to Mr. Dancy as the sole proximate cause of the crash, but “[t]here may be more than one proximate cause of an injury” (Santaiti v. Town of Ramapo, 162 AD3d 921, 926 [2d Dept 2018] [citations omitted]). ” ‘[A] plaintiff must generally show that the defendant’s negligence was a substantial cause of the events which produced the injury’ ” (id. at 927, quoting Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 315 [1980]). Here, assuming the facts alleged in the claim as true and according claimant the benefit of every favorable inference, a fact finder could reasonably conclude that the crash was a ” ‘foreseeable consequence of the situation created by the [troopers'] negligence’ ” (id.). Defendant also seeks summary judgment on its affirmative defense of governmental immunity. “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. If the moving party meets this burden, the burden then shifts to the non-moving party to establish the existence of material issues of fact which require a trial of the action” (Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014] [citations and internal quotation marks omitted]). CPLR 3212(b) provides that the motion must be supported with an affidavit “by a person having knowledge of the facts” and other available proof. The Court of Appeals explained in Villar v. Howard, 28 NY3d 74, 80-81 (2016), that the defense of governmental immunity is an “affirmative defense on which [the defendant] bears the burden of proof.” “‘In other words, even if a [claimant] establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental function can avoid liability if it timely raises the defense and proves that the alleged negligent act or omission involved the exercise of discretionary authority’ ” (Santaiti at 928, quoting Valdez v. City of New York, 18 NY3d 69, 76 [2011]; see McLean at 202-203]). Defendant’s proof consists of an attorney’s affirmation and the pleadings. There is no affidavit by an individual with knowledge of the material facts, or other admissible evidence. Defendant’s attorney cannot attest to probative facts (see Firth v. State of New York, 306 AD2d 666, 667-668 [3d Dept 2003] ["a conclusory attorney affirmation lacks probative value and cannot aid the moving party in sustaining its burden"]). The moving party has “an obligation to produce all the evidence within their ken, as upon a trial” (Five Boro Elec. Contrs. Assn v. City of New York, 37 AD2d 807, 807 [1st Dept 1971], affd 33 NY2d 676 [1973]). Defendant’s request for summary judgment is denied. Because the substantive motion is denied, claimant’s argument that the motion is premature pursuant to CPLR 3211(d) and 3212(f) is moot. Accordingly, defendant’s motion to dismiss and for summary judgment is denied. Dated: November 23, 2021