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THE SECTION OF THE VEHICLE AND TRAFFIC LAW RELIED ON BY THE POLICE FOR THE VEHICLE STOP MAY NOT HAVE BEEN APPLICABLE AND THE STOP THEREFORE MAY HAVE BEEN ILLEGAL; DEFENSE COUNSEL’S FAILURE TO MAKE A MOTION TO SUPPRESS ON THAT GROUND CONSTITUTED INEFFECTIVE ASSISTANCE; PLEA VACATED AND MATTER REMITTED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined the initial stop of the vehicle in which defendant attempted to flee from a public housing complex parking area may not have been justified and the defense attorney was ineffective for failing to move to suppress on that ground. The vehicle stop was based on the alleged violation of Vehicle and Traffic Law 1211 (unsafe backing). But the statute does not apply to parking areas as opposed to parking lots. The Fourth Department held the application of the law to a parking area would not constitute an objectively reasonable mistake of law which could justify the stop. On the record before it, however, the Fourth Department could not determine whether the area in question met the statutory definition of a parking lot:

… [D]efendant had a valid argument that the initial vehicle stop was unlawful because the parking area in which the police purportedly observed unsafe backing was not a “parking lot” within the meaning of Vehicle and Traffic Law § 129-b … . …

Defendant also had a valid argument that the initial vehicle stop could not be justified due to the police officers’ objectively reasonable, yet mistaken, belief that the parking area was a “parking lot” as defined by Vehicle and Traffic Law § 129-b … ….

Although contentions that defense counsel was ineffective survive only to the extent that “the plea bargaining process was infected by [the] allegedly ineffective assistance or that . . . defendant entered the plea because of [defense counsel’s] allegedly poor performance” … , the court’s consideration of the aforementioned arguments here would likely have resulted in suppression of the handgun and, concomitantly, dismissal of some or all of the indictment … . We therefore conclude that defendant demonstrated that “there is a reasonable probability that, but for counsel’s error[], [defendant] would not have pleaded guilty” … . People v Allen, 2020 NY Slip Op 03295, Fourth Dept 6-12-20

 

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PLAINTIFF BICYCLIST WAS ENTITLED TO SUMMARY JUDGMENT IN THIS TRUCK-BICYCLE COLLISION CASE; THE TRUCK DRIVER BREACHED HIS DUTY TO SEE WHAT SHOULD BE SEEN (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff bicyclist was entitled to summary judgment in this traffic accident case based upon the video taken from inside defendants’ truck (which collided with plaintiff):

The video footage taken from inside defendants’ truck shows plaintiff bicycling on the right side of the lane in front of Ortiz [the truck driver] before being struck … . Ortiz thus failed to exercise due care to avoid colliding with a bicyclist (Vehicle and Traffic Law § 1146[a]), and breached his duty “to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident”  … . Moreover, plaintiff was not required to demonstrate his own freedom from comparative negligence nor to show that defendants’ negligence was the sole proximate cause of the accident to be entitled to summary judgment … . Fernandez v Ortiz, 2020 NY Slip Op 02856, Second Dept 5-14-20

 

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ALTHOUGH THE CAR DEALER, DUE TO AN ERROR, DID NOT SUBMIT THE CORRECT REGISTRATION DOCUMENTS TO THE DEPARTMENT OF MOTOR VEHICLES WITHIN THE MANDATED FIVE-DAY PERIOD, THAT DEFECT DID NOT INVALIDATE THE TRANSFER OF OWNERSHIP OF THE CAR TO THE DRIVER INVOLVED IN THE ACCIDENT; THE DEALER WAS NOT THE OWNER OF THE CAR AT THE TIME OF THE ACCIDENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dealer (Zaki’s) which sold a car to the hit-and-run driver (Marcial) in this pedestrian traffic accident case demonstrated it was not the owner of the car at the time of the accident. The transaction was complete and the driver was insured. When the dealer submitted the title paperwork to the Department of Motor Vehicles (DMV) a mistake was discovered requiring that the dealer submit corrected paperwork. Therefore, technically, the dealer was not in compliance with requirement that the title paperwork be submitted to the DMV within five days. That technical defect did not affect the validity of the transfer of ownership to the driver:

Vehicle and Traffic Law § 420-a authorizes qualified automobile dealers to issue a temporary vehicle registration to a person to whom the dealer has sold or transferred a vehicle … . The temporary registration is valid for a period of 30 days after the date of issuance (see Vehicle and Traffic Law § 420-a[1]). Before issuing the temporary registration, the dealer must comply with certain statutory requirements, and, upon issuing the temporary registration, the dealer must send the permanent vehicle registration application to the commissioner of the DMV within five calendar days … . A dealer who fails to comply with the statutory requirements regarding vehicle registration procedures may be estopped from denying ownership of the vehicle and be held liable as if it were, in fact, the owner of the vehicle … .

It is not disputed that Zaki’s complied with all of the statutory requirements before issuing the temporary registration, and that Marcial had obtained insurance on the vehicle before being issued the temporary registration and taking the vehicle into his possession … . Further, Zaki’s evidence established that Zaki’s was diligent in its efforts to comply with the statutory requirements concerning the permanent registration, and that its failure to do so within the statutory five days was because of an error in the title that required correction, and not any negligence by Zaki’s in its statutory obligations … . In addition, there is no evidence that Zaki’s engaged in any act whereby it held itself out as the owner of the vehicle on the date of the accident or that it gained any financial advantage by failing to submit the permanent registration application within the five days following the issuance of the temporary registration … . Gonzalez v Zaki’s Auto Sales Corp., 2020 NY Slip Op 02644 Second Dept 5-6-20

 

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POLICE OFFICER DID NOT VIOLATE THE RECKLESS DISREGARD STANDARD BY MAKING A U-TURN IN RESPONSE TO A CALL FOR ASSISTANCE; THE STATE’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the “reckless disregard” standard applied to a police making a u-turn. Plaintiff motorcyclist alleged he lost control of the motorcycle because he was forced to brake when the officer (Balletto) pulled out from the shoulder to make the turn. Believing it was safe to do so, the officer made the u-turn to respond to another officer’s call for assistance. The state’s (defendant’s) motion for summary judgment was properly granted:

“[T]he reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence” … . “Conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b) includes disregarding regulations governing the direction of movement or turning in specified directions” (… see Vehicle and Traffic Law § 1104[b][4]).

Here, the defendant established, prima facie, that by attempting to execute a U-turn in response to another trooper’s radio call for assistance, Balletto’s conduct was exempted from the rules of the road by section 1104(b)(4), and that, as a result, his conduct was governed by the reckless disregard standard of care in section 1104(e) … . The defendant also established, prima facie, that Balletto did not operate the emergency vehicle in reckless disregard for the safety of others … . Cable v State of New York, 2020 NY Slip Op 02453, Second Dept 4-29-20

 

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QUESTION OF FACT WHETHER THE ‘RECKLESS DISREGARD’ STANDARD APPLIES TO THIS POLICE-CAR TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this police-car traffic accident case should not have been granted. The Second Department held there was a question of fact whether the police officer was an “authorized emergency vehicle” triggering the “reckless disregard” standard of care:

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when a vehicle she was operating collided with a police vehicle operated by the defendant Moira T. Larmour, a police officer. According to Larmour’s deposition testimony, the collision occurred when Larmour, who had been traveling west, made an “exaggerated u-turn” in an attempt to conduct a traffic stop of an unrelated vehicle for an allegedly expired inspection sticker and accelerated her vehicle, which spun on wet pavement and came into contact with the plaintiff’s vehicle, which was traveling east. * * *

Vehicle and Traffic Law § 1104 qualifiedly exempts drivers of authorized emergency vehicles from certain traffic laws when they are involved in an “emergency operation” … . An “emergency operation” is defined under Vehicle and Traffic Law § 114-b as, among other things, pursuing an “actual or suspected violator of the law.” Those privileges set forth in Vehicle and Traffic Law § 1104 include passing through red lights and stop signs, exceeding the speed limit, and disregarding regulations governing the direction of movement or turning in specified directions … . However, pursuant to Vehicle and Traffic Law § 1104(e), “[t]he 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 [or her] reckless disregard for the safety of others.” This is commonly referred to as the reckless disregard standard of care, which requires a plaintiff to establish that a police officer acted in reckless disregard for the safety of others in order to impose civil liability upon that officer … . Anderson v Suffolk County Police Dept., 2020 NY Slip Op 01894, Second Dept 3-18-20

 

TRAFFIC STOP WAS NOT SUPPORTED BY PROBABLE CAUSE TO BELIEVE DEFENDANT HAD COMMITTED A TRAFFIC VIOLATION (FOURTH DEPT).

The Fourth Department, reversing the Administrative Law Judge, determined defendant’s driver’s license should not have been revoked. The record lacked substantial evidence that the police officer had probable cause to believe defendant had committed a traffic violation when he made the traffic stop which resulted in defendant’s refusing to submit to a chemical test:

A police officer initially stopped petitioner on a suspected violation of Vehicle and Traffic Law § 600 (1) (a), i.e., leaving the scene of an accident that caused property damage without reporting it. The officer observed petitioner approximately one mile from the accident site driving a white pickup truck, which matched the description of the vehicle involved in the accident. The officer effected a stop of the truck by activating the patrol vehicle’s lights and ultimately took petitioner into custody after petitioner exhibited signs and made statements that indicated he was intoxicated. Petitioner refused to submit to a chemical test, and thus his driver’s license was temporarily suspended. A refusal revocation hearing was thereafter held pursuant to Vehicle and Traffic Law § 1194 (2) (c). The Administrative Law Judge revoked petitioner’s license after concluding, inter alia, that the traffic stop was legal. In affirming that determination on petitioner’s administrative appeal, respondent concluded that the stop was lawful because the officer “had a reasonable basis for stopping” petitioner.

We agree with petitioner that respondent reviewed the determination under an incorrect legal standard inasmuch as “the Court of Appeals has made it abundantly clear’ . . . that police stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime’ . . . [,] or where the police have probable cause to believe that the driver . . . has committed a traffic violation’ ” … . We further agree with petitioner that the record lacks substantial evidence to support the determination that the officer had the requisite probable cause at the time of the stop … . Matter of Deraway v New York State Dept. of Motor Vehs. Appeals Bd., 2020 NY Slip Op 01727, Fourth Dept 3-13-20

 

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THE BUS DRIVER VIOLATED THE VEHICLE AND TRAFFIC LAW AND WAS NEGLIGENT AS A MATTER OF LAW; DEFENSE VERDICT SET ASIDE (THIRD DEPT).

The Second Department, setting aside the defense verdict in this traffic accident case, determined the bus driver was negligent as a matter of law. To avoid a stopped vehicle the driver (Barreto) crossed a double yellow line and lost control of the bus which crashed into a store. The plaintiffs were bus passengers:

This Court has held that “a driver who crosses over a double yellow line into opposing traffic, unless justified by an emergency not of the driver’s own making, violated the Vehicle and Traffic Law and is guilty of negligence as a matter of law” (… see Vehicle and Traffic Law § 1126[a] …). Here, although the evidence demonstrated that there was snow or slush on the surface of the subject road, the adverse weather conditions, as well as the fact that the road sloped downhill, were foreseeable and known to Barreto and did not provide a nonnegligent explanation for Barreto’s violation of the Vehicle and Traffic Law … . Although the evidence demonstrated that there was a vehicle stopped in the bus’s lane of travel, thereby obstructing its path, the evidence also demonstrated that the stopped vehicle was observable from a far distance, that the bus did not slow down after the stopped vehicle came into Barreto’s view, and that Barreto crossed over the double-yellow line without slowing down. Under the circumstances, Barreto’s loss of control over the bus was the result of his own negligent driving in adverse weather conditions, rather than the result of an emergency not of his own making. The absence of an emergency was recognized by the Supreme Court in its refusal to grant the defendant’s request that the jury be given an instruction on the emergency doctrine.

Barreto’s operation of the bus under the circumstances here violated Vehicle and Traffic Law § 1120(a). Such violation constitutes negligence as a matter of law and could not properly be disregarded by the jury … . Hodnett v Westchester County Dept. of Pub. Works & Transp., 2020 NY Slip Op 01603, Second Dept 3-11-20

 

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PLAINTIFF WAS LEANING INSIDE THE OPEN DOOR OF A VAN WHEN THE VAN SUDDENLY MOVED FORWARD; THE RELATED VIOLATION OF THE VEHICLE AND TRAFFIC LAW CONSTITUTED NEGLIGENCE PER SE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s summary judgment motion in this vehicle-injury case should have been granted. Plaintiff was leaning into the open sliding door of a van when the van suddenly moved forward. Plaintiff sued the owner of the van (J & D) and the driver. The related violation of the Vehicle and Traffic Law constituted negligence per se:

A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law … . Here, the plaintiff established her prima facie entitlement to judgment as a matter of law by presenting uncontroverted evidence that the driver stepped on the gas pedal while she was leaning into the vehicle, causing the vehicle to move forward and her to be injured by the sliding of the minivan’s door into her back (see Vehicle and Traffic Law § 1162 … ). This negligence can be imputed to J & D, which was the owner of the vehicle, through the presumption that the operator was driving the vehicle with the owner’s express or implied consent (see Vehicle and Traffic Law § 388[1]). Edwards v J&D Express Serv. Corp., 2020 NY Slip Op 01145, Second Dept 2-19-20

 

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THE CARRIER WHICH HAD ISSUED A BUSINESS AUTOMOBILE INSURANCE POLICY COVERING THE INSURED’S FLATBED TRUCK WAS OBLIGATED TO DEFEND THIS ACTION STEMMING FROM AN INJURY INCURRED WHILE UNLOADING A TRACTOR FROM THE FLATBED TRUCK; UNLOADING A TRUCK IS CONSIDERED OPERATION OF THE TRUCK UNDER VEHICLE AND TRAFFIC LAW 388 (THIRD DEPT).

The Third Department determined plaintiff-insurer was obligated to defend and the insured in this personal injury case stemming from the unloading of a tractor from a flatbed truck owned by the insured. The tractor rolled over the insured’s son as it was being unloaded. The son and his wife sued the insured and the insured’s farm. Plaintiff carrier brought this action for a declaratory judgment that it was not obligated to defend or indemnify, apparently claiming the (insured’s) truck was not being operated when the accident occurred:

If anything within the “four corners of the complaint suggest[s] . . . a reasonable possibility of coverage,” the insurer must defend, even though it may not ultimately be bound to pay because the insured may not be liable … . …

Pursuant to the Vehicle and Traffic Law, “[e]very owner of a vehicle used or operated in this state shall be liable and responsible for . . . injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner” (Vehicle and Traffic Law § 388 [1]) … . * * * “The policy of insurance issued must be as broad as the insured owner’s liability for use of the vehicle by the owner or anyone using the vehicle with his [or her] permission” … .

Loading and unloading of a covered vehicle constitute “use or operation” pursuant to Vehicle and Traffic Law § 388 (1) … , and a vehicle does not have to be in motion to be in “use or operation” … . * * *

George Henderson [the insured] loaded and secured the tractor on the flatbed truck, drove the flatbed truck to the farm, rolled the bed back and tilted it, and operated the winch that was supposed to be holding the tractor in place. He also regularly requested or allowed Charles Henderson [his son} and the other individual to unload machinery from the flatbed truck. Charles Henderson asserted that, due to George Henderson not paying attention, the winch cable went slack, causing it to release from the tractor and allow the tractor to roll. George Henderson is potentially both directly and vicariously liable for negligence in the personal injury action … , and there is prima facie “reasonable possibility of coverage” … . Thus, plaintiff is obliged to defend George Henderson and the farm in the underlying action. Farm Family Cas. Ins. Co. v Henderson, 2020 NY Slip Op 00021, Third Dept 1-2-20

 

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PLAINTIFF POLICE OFFICER’S MOTION FOR SUMMARY JUDGMENT AGAINST THE DRIVER OF THE TRACTOR TRAILER WHICH STRUCK HIM WHEN HE WAS STANDING IN THE ROADWAY SHOULD HAVE BEEN GRANTED, FREEDOM FROM COMPARATIVE FAULT NO LONGER NEED BE SHOWN; OTHER ISSUES ADDRESSED IN THE DECISION INCLUDE THE EMPLOYER’S LIABILITY, THE TRUCK RENTAL COMPANIES’ LIABILITY, THE EMERGENCY DOCTRINE, WORKERS’ COMPENSATION AND GENERAL MUNICIPAL LAW 205-e (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined plaintiff police officer was entitled to summary judgment against the driver of the tractor trailer which struck the officer who was standing in the roadway both under a common law negligence theory and under General Municipal Law 205-e. The court dealt with several other issues including: (1) whether a second police officer was engaged in an emergency operation, giving rise to the reckless disregard standard, when he stopped to assist the plaintiff who had made a traffic stop (the answer is no); (2) whether the second officer was liable based upon the position of his car (the answer is no, the car furnished a condition for the accident but was not the cause); (3) whether the injured officer’s recovery was confined to Workers’ Compensation (there is a question of fact whether the injury was “grave”); (4) whether the Graves Amendment protected the truck rental companies (the answer is yes); (5) whether vicarious liability applies to the truck driver’s employer (there is a question of fact on that issue). With respect to the common law negligence and the General Municipal Law 205-e causes of action, the court wrote:

… [T]he plaintiffs were not required to demonstrate that the injured plaintiff was free from comparative negligence in order to obtain summary judgment on the issue of Burke’s [the truck driver’s] liability on the first cause of action [negligence]. * * *

When the light changed, Burke began his left turn onto northbound Midland Avenue. Prior to beginning his turn, Burke was aware that there was a police officer conducting a traffic stop on foot and a police car parked on the northbound side of Midland Avenue. Although Burke believed he could make the turn safely, the rear of the trailer hit the injured plaintiff. * * *

The plaintiffs also established … Burke’s liability as to … a violation of General Municipal Law § 205-e. … [T]hat statute permits a police officer to bring a tort claim for injuries sustained “while in the discharge or performance at any time or place of any duty imposed by . . . superior officer[s]” where such injuries occur “directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments” … . In order to recover under the statute, “a police officer must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties” … .

Vehicle and Traffic Law § 1146(a) requires a driver to “exercise due care to avoid colliding with any . . . pedestrian.” Here, the unrebutted evidence established a prima facie violation of § 1146(a), as it demonstrated that Burke failed to exercise due care to avoid hitting the injured plaintiff. Cioffi v S.M. Foods, Inc., 2019 NY Slip Op 09251, Second Dept 12-24-19

 

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