CRIST III v. ROSENBERGER

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Supreme Court, Orange County, New York.

Shawn CRIST, as Guardian Ad Litem of Leroy Crist, III, an Adult Incapable of Adequately Prosecuting or Defending his Interest, Plaintiff, v. Robert ROSENBERGER, Defendant.

EF008622-2017

Decided: April 29, 2021

FINKELSTEIN & PARTNERS, LLP, Attorneys for the Plaintiff, Office & P.O. Address, 1279 Route 300, P.O. Box 1111, Newburgh, New York 12551 CONNOR, McGUINNESS, CONTE, DOYLE, OLESON, WATSON & LOFTUS, Attorneys for the Defendant, Office & P.O. Address, One Barker Ave., Suite 675, White Plains, New York 10601

(1) A motion by the Plaintiff, pursuant to CPLR 3212, for summary judgment on the issue of liability, and dismissing the Defendant's first affirmative defense; and (2) a cross motion by the Defendant, pursuant to CPLR 3211(a)(2), to dismiss the action for lack of subject matter jurisdiction.

It is hereby, ORDERED, the motion is granted and the cross motion denied.

Introduction

The Plaintiff Leroy Crist, while a pedestrian, was allegedly injured when he was struck by a vehicle being driven by the Defendant Robert Rosenberger. At the time, the Defendant was in the course of his employment as a probation officer.

The Plaintiff moves for summary judgment on the issue of liability.

The Defendant cross moves to dismiss the complaint for lack of subject matter jurisdiction. The Defendant argues that, because he was in the course of his employment at the time of the accident, Correction Law § 24 requires that this action be brought in the Court of Claims against the State.

The motion is granted and the cross motion denied.

Procedural/Factual Background

Initially, it is noted, this action is being prosecuted by the Plaintiff's nephew, Shawn Crist, as guardian at litem. According to Crist, the Plaintiff, in addition to the injuries caused by the accident, is developmentally disabled and suffers from schizophrenia. As a result, he is unable to testify as to the happening of the accident.

Accordingly, the relevant facts must be drawn from the testimony of the Defendant, the police report of the accident, and a video recording of the accident.

From the record presented, the following may be discerned.

The accident occurred on Anne Street in Newburgh, New York on September 1, 2017. Anne Street run east to west.

The Court was not provided with a copy of the video recording of the accident. However, the Plaintiff submitted still shots from the same. Based on the stills, the following may be determined.

Near the place where the accident occurred is a cross walk which runs at a westerly angle south to north across Ann Street.

The Plaintiff first appears on the south side of Ann Street approximately 6 to 10 feet to the left of the cross walk. He is walking north, parallel to the cross walk.

The Defendant's vehicle appears on the right, traveling east to west.

When the Plaintiff and the Defendant's vehicle are both in the right (easterly) lane, the right driver's side of the Defendant's vehicle contacts the right side of the Plaintiff's body. The vehicle veers right and stops.

At an examination before trial, the Defendant testified as follows.

On September 1, 2017, he was driving in the City of Newburgh in the course of his employment as a parole officer for the New York State Department of Corrections and Community Supervision. He was driving his own vehicle. He used his own vehicle if a state owned vehicle was not available. The state reimbursed him for gas and tolls. The accident occurred when he was driving from one parolee to another. The weather was dry. His vehicle was in good mechanical condition.

Just prior to the accident, he was traveling on Ann Street at no more than ten miles an hour. Ann Street is a two-way road with one lane of travel in each direction.

After he was on Anne Street for less than a minute, while between two intersections, his vehicle came into contact with what he believed was the Plaintiff's leg. He first saw the Plaintiff when he was approximately 15 yards away. He was standing in the street, near parked vehicles. The Plaintiff was on the south side of the street, and he was on the north side. The Plaintiff was by himself, standing still.

When he first saw the Plaintiff, he braked to slow down. He was then traveling between five and ten miles per hour when the outer driver's side corner of his vehicle came into contact with the Plaintiff's leg. The collision cracked his bumper, and the Plaintiff struck his windshield.

Prior to being struck, the Plaintiff was stopped in the middle of the roadway in the westbound lane of travel. He was walking very slow and stopped at several points.

After the impact, he saw the Plaintiff lying in the street. The police were summoned.

Finally, he did not recall if he told a subsequently investigating officer that the Plaintiff “darted out in front” of him.

The police officer who investigated the accident, Roman Scuadroni, testified at an examination before trial that the accident occurred near the Department of Social Services building between 111 Broadway and 141 Ann Street, near a big parking lot for county employees (Scuadroni, p. 13). Ann Street is a two-way undivided street with one lane of travel in each direction, and parking lanes on both sides of the street (Scuadroni p. 13). Scuadroni did not know if there was a cross-walk in the area (Scuadroni p. 13,14). Scuadroni knew the Plaintiff from seeing him around in the area, but did not know his name (Scuadroni p. 20). He knew the Defendant, as they had worked together on prior occasion (Scuadroni p. 21,22).

Scuadroni “thinks” that the Defendant might have said that he was driving and “this gentleman just jumped in front of his car.” (Scuadroni p. 26).

Scuadroni observed plastic from one of the Defendant's fog lights in the middle of the roadway (Scuadroni p. 27). He did not ask the Defendant how fast he was driving at the time of the impact (Scuadroni p. 28).

In box “19” of his report, Scuadroni indicated that an apparent contributing factor to the accident was driver inattention (Scuadroni p. 39). When asked why he wrote that, he testified: “He [the Defendant] might have got distracted, he didn't see this gentleman walking in front of him.” (Scuadroni p. 39).

The Motion

The Plaintiff moves for summary judgment on the issue of liability, and to dismiss the Defendant's first affirmative defense of contributory negligence.

In support of the motion, the Plaintiff submits an affirmation from counsel, George Kohl.

Kohl asserts that the Plaintiff is in a nursing home and apparently does not have the capacity to testify relative to this accident. Thus, Shawn Crist, his nephew and guardian ad litem, provided testimony before trial.

Shawn Crist testified, inter alia, that the Plaintiff was 63 years old, had a mental disability and acted “a little younger; and could not remember anything about the accident (Crist pp. 19-20, 30). Further, that the accident occurred about two blocks from the Plaintiff's apartment, as he walking to a food pantry, which was his regular practice (Crist p. 27).

Kohl argues that it may be found that the Defendant was negligent as a matter of law because he violated Vehicle & Traffic Law § 1146(a), which requires drivers to exercise due care to avoid colliding with any pedestrians.

Moreover, he asserts, the damage to the Defendant's vehicle demonstrates that the impact occurred a speed greater than 5 to 10 miles per hour, to wit: there is a crack in the bumper on the driver's side of the vehicle, the windshield was cracked, and a part was knocked off of the vehicle.

Further, Kohl argues, significantly, the Defendant admitted that he did not apply his brakes before the impact, and did not remember stating that the Plaintiff “darted out in front of him.”

Kohl notes that the Plaintiff was able to obtain a video of the accident produced by the County which showed the Defendant driving into the Plaintiff without stopping, slowing or swerving. This is true, Kohl notes, even though the Defendant stated that he first saw the Plaintiff when he was about 45 feet away.

Moreover, Kohl avers, the video shows both that the Plaintiff did not in fact dart in front of the Defendant's vehicle, and that the Defendant could have easily avoided striking the Plaintiff by simply stopping or veering his vehicle to the right before impact.

Kohl notes that the Defendant did not offer any reason for his failure to either apply his brakes sooner, or to swerve his vehicle.

In sum, Kohl argues, it may be found as a matter of law that the Defendant was negligent in the happening of the accident.

By contrast, he asserts, that the Plaintiff was crossing the street at a point other than in a crosswalk does not constitute negligence as a matter of law.

In any event, Kohl argues, even if the Plaintiff was also negligent for crossing the street in an area other then in a crosswalk, such an act was not a proximate cause of the accident, given the Defendant's testimony supra.

In sum, he argues, the Court should grant the Plaintiff summary judgment on the issue of liability.

The Cross Motion

The Defendant cross moves to dismiss the complaint for lack of subject matter jurisdiction.

In support of the cross motion, the Defendant submits an affirmation from counsel, Dennis Doyle.

Doyle asserts that, at the time of the accident, the Defendant was a parole officer in the course of his employment and acting within the scope of his duties.

Doyle notes that, pursuant to Correction Law § 24:

1. No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department, which for purposes of this section shall include members of the state board of parole, in his or her personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.

2. Any claim for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties of any officer or employee of the department shall be brought and maintained in the Court of Claims as a claim against the State.

Thus, Doyle notes, the plain language of Correction Law § 24(1) and (2) requires dismissal of complaint as against the Defendant for lack of subject matter jurisdiction.

In any event, he asserts, if the merits were to be reached, the Plaintiff's motion should be denied.

Doyle argues that, viewing the facts in the light most favorable to the Defendant, the relevant facts are as follows.

Just prior to the accident, the Defendant was driving down Ann Street at approximately 15 miles per hour when he observed the Plaintiff stepping into the roadway to his left. He observed him slowly walking at an angle toward the opposite lane of travel. The Plaintiff was not within a designated cross walk, and there is no observable reason why the Plaintiff did not see the Defendant's vehicle lawfully proceeding down Ann Street. Indeed, Doyle asserts, the Defendant “fully expected” the Plaintiff to cross behind his vehicle as it passed. However, “at the last moment, the Defendant observed the Plaintiff “step into the left driver's side front side of his vehicle causing contact with [the Defendant's] vehicle.” Upon impact, the Defendant immediately applied his brakes and steered the vehicle to the right bringing it to a controlled stop a car length or two away.

Doyle argues that it was reasonable for the Defendant to believe the Plaintiff was not going to walk directly into his vehicle, but instead was going to wait for him to pass and then cross behind the vehicle.

Moreover, Doyle asserts, the Plaintiff is incorrect that the video footage contradicts the Defendant's testimony.

Finally, Doyle argues, at a minimum, there is a question of fact for the jury with regard to whether Plaintiff's actions caused or contributed the accident.

In further support of the cross motion, the Defendant submits his own affidavit.

Concerning the happening of the accident, the Defendant avers as follow:

I was operating the vehicle owned by me in an easterly direction on Ann Street in the City of Newburgh, New York. My vehicle was in full proper operating condition. I was proceeding at approximately 15 miles per hour within the speed limit. I was operating in good health condition without any physical impairment.

As I was proceeding down Ann Street, I observed a pedestrian (Crist) stepping into the roadway to my left. I observed him slowly walking at an angle starting to cross the opposite lane of travel. He was not within a designated cross walk. There is no observable reason why he did not see my vehicle lawfully proceeding down Ann Street. I fully expected him to cross behind my vehicle as it passed by. Instead, at the last moment, I observed him step into the left drivers side front side of my vehicle causing contact with him and my vehicle. I immediately applied my brakes and steered the vehicle to the right bringing it to a controlled stop a car length or two off. I immediately returned to the individual (Crist) in the street and began to seek assistance for him.

It is my factual contention that the sole cause of this accident was the pedestrian (Crist) crossing the roadway and stepping into my lawful path of travel at the last moment as my car was adjacent to him. As noted above, I was lawfully proceeding on the roadway with full observation of what could be seen. I did not expect that pedestrian (Crist) to step into my path of travel.

Concerning his status at the time of the accident, the Plaintiff avers as follows.

I have for a number of years been employed by the State of New York as a Parole Officer and at the time of this accident, I was discharging my duties proceeding from one parolee curfew/residential check to the next parolee's address. I was not on Private affairs at the time of this accident.

I have been employed by the State of New York since approximately 2008 and was so employed on the date of the accident. Initially when I sought employment as a Parole Officer, it was pursuant to a Civil Service job announcement wherein it indicated that such personnel might require the use of their own car. I was using my own car to perform my job duties at the time of the accident. I was employed by New York State Department of Corrections and Community Supervisor as a Parole Officer. I am a member of the Public Employees Federation Union. My job duties had flexible hours and required me to drive to the location of a parolee to observe whether the parolee was in compliance with their parole requirements.

Such Surveillance might engage the parolee in discussion or might simply involve sitting in the vehicle in the location indicated to observe whether there was indication of compliance such as getting up in the morning to leave for work or coming back from work etc. As noted above, that was the activity that I was engaged in at the time of this accident - proceeding from one parolee address in Orange County going to next parolee's address to perform compliance verification. That is when the accident occurred.

In reply, the Plaintiff submits an affirmation from counsel, George Kohl.

Kohl argues that the video footage and testimony show that the Defendant merely drove into the Plaintiff without stopping.

Further, he asserts, Corrections Law § 24 does not preclude an action in Supreme Court on the facts presented.

In further opposition to the cross motion, the New York State Public Employees Federation, AFL-CIO submits an amicus curiae brief arguing that Correction Law § 24 precludes this action in Supreme Court.

The Defendant also submits a letter from the Attorney General of the State of New York, dated September 20, 2020, stating that it would not be taking over the defense of the action. Further, the letter notes, it appeared that exclusive jurisdiction over the matter was with the Court of Claims.

Discussion/Legal Analysis

A threshold issue is whether this Court has subject matter jurisdiction over the action. This issue is more complex and nuanced than it appears at first glance. The Court concludes that it does have subject matter jurisdiction over the matter. The Court finds that there is a lack of clear and consistent controlling case law authority as to the same, and that the applicability of the statute must be resolved by application of general rules of statutory construction in light of the legislative purpose of the statute.

Correction Law § 24 provides:

1. No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department, which for purposes of this section shall include members of the state board of parole, in his or her personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.

2. Any claim for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties of any officer or employee of the department shall be brought and maintained in the court of claims as a claim against the state.

3. This section shall apply with respect to claims arising on or after the effective date of this section.

Here, the Defendant is in the general class of persons protected under the statute.

Further, the Court finds, applying general principles of law, the Defendant demonstrated, prima facie, that he was in the “scope of his employment” at the time of the accident.

In general, an act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his or her employer, or the act may be reasonably said to be necessary or incidental to such employment. Zwibel v. Midway Automotive Group, 127 A.D.3d 965, 7 N.Y.S.3d 377 [2nd Dept. 2015].

Relevant to the case at bar, an employee is not typically deemed to be acting within the scope of his or her employment when driving to or from work. Davis v. Larhette, 39 A.D.3d 693, 834 N.Y.S.2d 280 [2nd Dept. 2007]. However, an exception to the general rule occurs where the employee uses his or her car in furtherance of work. Davis v. Larhette, 39 A.D.3d 693, 834 N.Y.S.2d 280 [2nd Dept. 2007].

Where travel is part of the employment, the crucial test is whether the employment created the necessity for the travel. Kelly v. Starr, 181 A.D.3d 799, 120 N.Y.S.3d 373 [2nd Dept. 2020]. An employer is freed from liability where the travel by the employee would still have occurred even though the business purpose had been cancelled. Davis v. Larhette, 39 A.D.3d 693, 834 N.Y.S.2d 280 [2nd Dept. 2007]; Camisa v. Rosen, 150 A.D.3d 809, 54 N.Y.S.3d 111 [2nd Dept. 2017]. Otherwise employer responsibility is broad, particularly where employee activity may be regarded as incidental to the furtherance of the employer's interest. Davis v. Larhette, 39 A.D.3d 693, 834 N.Y.S.2d 280 [2nd Dept. 2007]. However, an employer cannot be held vicariously liable for its employee's alleged tortious conduct if the employee was acting solely for personal motives unrelated to the furtherance of the employer's business at the time of the incident. Zwibel v. Midway Automotive Group, 127 A.D.3d 965, 7 N.Y.S.3d 377 [2nd Dept. 2015].

Here, the Defendant testified that his employment duties required him to drive to various locations, and that he was in the course of such employment at the time of the accident, to wit: he was traveling from one parolee to another.

Thus, the Defendant demonstrated, prima facie, that he was in the course of his employment at the time of the accident.

In opposition, the Plaintiff failed to raise a triable issue of fact.

Thus, applying the plain language of Correction Law § 24, it would appear that the Court lacks subject matter jurisdiction over the accident, and that the Plaintiff must bring this action in the Court of Claim against the State.

Indeed, the Third Department appears to have concluded the same in an action arising from a motor vehicle accident involving two corrections officers.

In Lumpkin v. Albany Truck Rental Services, Inc., 70 A.D.2d 441, 421 N.Y.S.2d 714 (3rd Dept. 1979), two department of corrections employees were driving a tractor-trailer in the course of their employment when a tire became flat, causing the vehicle to overturn. One employee was killed. His estate commenced a negligence action to recover damages against the surviving co-employee, the manufacturer of the tire, and the owner/lessor of the vehicle. After the main action was dismissed as against the surviving employee based on the exclusivity of the Workers' Compensation Law, the manufacturer of the tire and the owner/lessor of the vehicle commenced a third-party action against the surviving employee for indemnity and contribution. The surviving employee moved to dismiss the third-party claims as also barred by Correction Law § 24. The Supreme Court granted the motion. The Third Department affirmed.

In affirming, the Third Department noted that the owner/lessor of the truck had argued that, because it was seeking damages for indemnification or contribution, and not “damages out of an act done” by the surviving employee, its claim did not contravene section 24. However, the Third Department held, there was nothing in section 24 that indicated that the nature of the cause of action asserted was of any consequence. Rather, the statute prohibited any action by anyone other than the Attorney General. And, the Third Department held, where, as here, “a statute is free from ambiguity and its sweep unburdened by qualification or exception, we must do no more and no less than apply the language as it is written.”

Further, the Lumpkin Court noted, the owner/lessor of the vehicle had cited a memorandum which suggested that the legislative intent was to protect employees only as to Federal actions. However, the Third Department noted, the memorandum concerned an amendment to section 24, which did not affect subdivision 1 (L.1974, ch. 537, s 1).

Finally, the Lumpkin court noted, the tire manufacturer had argued that the protections given employees of the Department of Correctional Services was a denial of equal protection of the law, given that other State employees remained liable for negligence in the operation of motor vehicles in the course of their employment. However, the Third Department held, the Legislature could have concluded that Department of Correctional Services employees “are more susceptible to lawsuits than other State workers and that it is impracticable to make some types of lawsuits permissible while proscribing others.”

In sum, the Third Department held, the third-party claims were properly dismissed.

Thus, here, there is appellate precedent for the Defendant's reading of the statute. See also, Cepeda v. Coughlin, 128 A.D.2d 995, 513 N.Y.S.2d 528 [3rd Dept. 1987][“Correction Law § 24 prohibits all civil actions against correction officers in their personal capacities”].

However, the Court notes, it appears that more recent case law has taken a more nuanced approach to the statute by focusing on the specific activity that was occurring when a cause of action accrued.

For example, in Mark v. Vasseur, 213 A.D.2d 927, 624 N.Y.S.2d 972 (3rd Dept. 1995), the Defendant was an employee of the Department of Corrections who was involved in a motor vehicle accident in the course of his employment (transporting inmates in a van). After a verdict was rendered against him in a negligence action, he moved to set aside the verdict for lack of subject matter jurisdiction based on Correction Law § 24. The trial court denied the motion. The Third Department affirmed the denial on the “authority” of Morell v. Balasubramanian, 70 N.Y.2d 297, 520 N.Y.S.2d 530, 514 N.E.2d 1101 (1987).

In Morell, the plaintiff was a patient who died during surgery at Helen Hayes Hospital, a State institution. The defendants were State-employed physicians. The decedent's estate commenced two malpractice actions—one against the State in the Court of Claims and the other (the one before the Court) in Supreme Court.

Before the Supreme Court, the state-defendants moved to dismiss the complaint for lack of subject matter jurisdiction.1 The Supreme Court denied the motion.

On appeal, the First Department reversed, holding:

Since, as mentioned supra, plaintiff brought the action against defendant doctors for actions taken in their official capacities, this action is “in reality, an action against the State ***and is controlled by the jurisdictional predicates governing such actions” (Ashland Equities Co. v. Clerk of NY County, 110 A.D.2d 60, 65, 493 N.Y.S.2d 133 [1st Dept. 1985]). In view of the fact that actions against the State can only be entertained in the Court of Claims (Court of Claims Act, § 9, subd 4)” (Schaffer v. Evans, 57 N.Y.2d 992, 994, 457 N.Y.S.2d 237, 443 N.E.2d 485 [1982]), the Supreme Court does not have subject matter jurisdiction over the instant matter.

Morell v. Balasubramanian, 124 A.D.2d 498, 507 N.Y.S.2d 865 [1st Dept. 1986].

On further appeal, the Court of Appeals reversed the First Department. Morell v. Balasubramanian, 70 N.Y.2d 297, 520 N.Y.S.2d 530, 514 N.E.2d 1101 [1987].

In Morell, the Court of Appeals noted that, since the adoption of the Court of Claims Act (L 1929, ch 467), the State has been subject to suit for damages, but only in the Court of Claims. The Court of Claims has limited jurisdiction to hear actions against the State itself, or actions naming State agencies or officials as defendants, where the action is, in reality, one against the State—i.e., where the State is the real party in interest. In general, the Morell Court noted, actions against State officers acting in their official capacity in the exercise of governmental functions are deemed to be, in essence, claims against the State and, therefore, actionable only in the Court of Claims. However, the Court noted, not every suit against an officer of the State is a suit against the State. Rather, a suit against a State officer will be held to be one which is really asserted against the State when it arises from actions or determinations of the officer made in his or her official role and involves rights asserted, not against the officer individually, but solely against the State. For example, an action for damages against the Director of the State Lottery Division stemming from a disputed termination of claimant's license agreement, and a demand for damages against the Commissioner of the State Department of Social Services based on the allegedly unconstitutional procedures employed by the State for out-of-State placement of mentally or emotionally handicapped children.

By contrast, the Morell Court noted, when the suit against the State agent or officer is in tort for damages arising from the breach of a duty owed individually by such agent or officer directly to the injured party, the State is not the real party in interest—even though it could be held secondarily liable for the tortious acts under respondeat superior. Thus, the Court noted, an action arising out of a traffic accident against a hospital operating a State ambulance service was not one against the State as real party in interest. The action could, therefore, be maintained against the hospital in Supreme Court. Similarly, the Court noted, where a plaintiffs' property was damaged by defendants in making street excavations as agents of the State, the plaintiff was permitted to sue the primary tort-feasors in Supreme Court even though the State could be held secondarily liable for their conduct.

Thus, the Morell Court held, in the case before them, it followed that the plaintiff's suit against the defendants individually for an alleged breach of the duty of care owed by them directly to decedent was not one against State officers as representatives of the State in their official capacity, which had to be brought in the Court of Claims. Thus, the Court held, the Plaintiff could sue in Supreme Court.

Relevant to the case at bar, the Court notes, it is not clear whether Morell concerned Correction Law § 24. The Court of Appeals determination did not expressly address the statute. Rather, it concerned broader concepts as to who was the “real party in interest.”

However, the Court notes, in Ismail v. Singh, 3 Misc. 3d 188, 776 N.Y.S.2d 166 [S. Ct. Kings 2003]), the Supreme Court, Kings County, expressly addressed the effect of Morell as it concerns Correction Law § 24; focusing in particular on the meaning of the phrase “and in the discharge of the duties by such officer or employee,” as used in the statute, and how it relates to the concept of the real party in interest.

In Ismail, the plaintiffs were injured in a motor vehicle accident involving a van being driven by a defendant, David Pellegrino. At the time of the accident, Pelligrino was a Department of Corrections employee driving a State owned vehicle from Sing—Sing to Queensboro Correctional Facility to deliver supplies.

Pellegrino moved to dismiss the complaint as against him based on Corrections Law § 24.

In denying the motion, the Supreme Court relied on Mark v. Vasseur (supra). The Supreme Court held that the Mark court “implicitly found that defendant's operation of the vehicle was not an exercise of an official government function and the state was not the real party in interest. The matter was deemed to be outside of the ambit of Corrections Law § 24 and properly before the Supreme Court.”

The Supreme Court found such a “narrower interpretation of Corrections Law § 24” to be appropriate in light of the purposes for which it was enacted, to wit: “Because of the unquestioned risks to inmates, employees, and the public from a breakdown in order and discipline in correctional facilities and the potentially tragic consequences of such occurrences it is particularly important that correction officers not be dissuaded by the possibility of litigation from making the difficult decisions which their duties demand.” citing Arteaga v. State, 72 N.Y.2d 212, 532 N.Y.S.2d 57, 527 N.E.2d 1194 [1988] and Jones v. State of New York, 33 N.Y.2d 275, 352 N.Y.S.2d 169, 307 N.E.2d 236 [1973]). Thus, the Supreme Court held, the statutory protection of Corrections Law § 24 was provided to permit correction officers to perform the demanding task of maintaining safety and security within correctional facilities “undeterred by the fear of personal liability and vexatious suits, which could substantially impair the effective performance of a discretionary function.” citing Ierardi v. Sisco, 119 F.3d 183 [2d Cir. 1997]); Arteaga v. State, supra, 72 N.Y.2d 212, 532 N.Y.S.2d 57, 527 N.E.2d 1194).

The Supreme Court held that, relying on the legislative intent, the phrase “within the scope of the employment and in the discharge of the duties” as used in Corrections Law § 24 could be reasonably construed to encompass only those aspects of employment that involve interaction between inmates and correctional officers or employees. Under such a statutory construction, the Supreme Court noted, the negligent driving of a motor vehicle in which no inmates are transported would not fall under the statute's protection.

In sum, the Supreme Court held, the action before it was not controlled by Correction Law § 24.

In Woodward v. State of New York, 23 A.D.3d 852, 805 N.Y.S.2d 670 (3rd Dept. 2005), the Court notes, the Third Department considered the scope of Correction Law § 24 as it concerned a lawsuit by a senior correction counselor against other corrections officers pursuant to, inter alia, 42 USC § 1983. The Third Department held:

As to the proper application of Correction Law § 24, we first note that the statute places actions for money damages against DOCS employees within the jurisdiction of the Court of Claims only where the conduct alleged is within the scope of the officer's employment and in the discharge of his or her official duties. The conditioning of the statute's effect upon these criteria reflects the common-law principle that the State is the real party in interest where an action against a State officer is for conduct undertaken in an official capacity and in the exercise of an official governmental function. When these criteria are met, section 24 appropriately deems the State to be the real party in interest and the action to be within the exclusive jurisdiction of the Court of Claims (see NY Const., art. VI, § 9). If, however, the DOCS officer's conduct is a breach of an individual duty and not in the exercise of an official governmental function, then the State is not the real party in interest and section 24 is not applicable. Thus, where it is properly applied, section 24 does not infringe upon Supreme Court's general original jurisdiction (see NY Const., art. VI, § 7[a]).

Finally, we conclude that the criteria for the application of Correction Law § 24 are met here. Although Supreme Court expressly found only that defendants' alleged conduct was within the scope of their employment, the conduct also clearly arose out of defendants' discharge of their duties as plaintiff's supervisors, as in Gore v Kuhlman (supra)

Woodward v. State of New York, 23 A.D.3d 852, 805 N.Y.S.2d 670 [3rd Dept. 2005][internal citations omitted].

Given the above, the Court finds that there is no clear, controlling case law.

Rather, the Court finds that the applicability of Correction Law § 24 must be determined by applying the general principles discussed in the case law supra, and by application of general rules of statutory construction in light of the legislative intent of the statute.

In interpreting a statute, the Court's primary consideration is to ascertain and give effect to the intention of the legislature, and the statutory text is the clearest indication of legislative intent. People v. Badji, 36 N.Y.3d 393, 142 N.Y.S.3d 128, 165 N.E.3d 1068 (2021). Thus, courts should construe unambiguous language to give effect to its plain meaning. People v. Badji, 36 N.Y.3d 393, 142 N.Y.S.3d 128, 165 N.E.3d 1068 (2021). The literal language of a statute is generally controlling unless the plain intent and purpose of a statute would otherwise be defeated. Anonymous v. Molik, 32 N.Y.3d 30, 84 N.Y.S.3d 414, 109 N.E.3d 563 (2018); Avella v. City of New York, 29 N.Y.3d 425, 58 N.Y.S.3d 236, 80 N.E.3d 982 (2017). Where the language is ambiguous or where a literal construction would lead to absurd or unreasonable consequences that are contrary to the purpose of the statute's enactment, courts may resort to legislative history. Anonymous v. Molik, 32 N.Y.3d 30, 84 N.Y.S.3d 414, 109 N.E.3d 563 (2018); Avella v. City of New York, 29 N.Y.3d 425, 58 N.Y.S.3d 236, 80 N.E.3d 982 (2017).

In interpreting statutory language, all parts of a statute are intended to be given effect. A statutory construction which renders one part meaningless should be avoided. Anonymous v. Molik, 32 N.Y.3d 30, 84 N.Y.S.3d 414, 109 N.E.3d 563 (2018); Avella v. City of New York, 29 N.Y.3d 425, 58 N.Y.S.3d 236, 80 N.E.3d 982 (2017). A statute must be construed as a whole and its various sections must be considered together and with reference to each other. Anonymous v. Molik, 32 N.Y.3d 30, 84 N.Y.S.3d 414, 109 N.E.3d 563 (2018); Avella v. City of New York, 29 N.Y.3d 425, 58 N.Y.S.3d 236, 80 N.E.3d 982 (2017).

Further, although the plain language of the statute provides the best evidence of intent, the legislative history of an enactment may also be relevant and is not to be ignored. Even if the words of the statute are clear, as the primary goal of the court in interpreting a statute is to determine and implement the Legislature's intent. People v. Badji, 36 N.Y.3d 393, 142 N.Y.S.3d 128, 165 N.E.3d 1068 (2021); Ly v. New York City Employees Retirement System, 189 A.D.3d 1410, 139 N.Y.S.3d 261 [2nd Dept. 2020].

Here, it is noted, Correction Law § 24 singles out a specific group of officers and employees for special protections. These include procedural advantages. For example, the action at bar would require a notice of claim be filed within 90 days of when the cause of action accrued. Court of Claims Act § 10 (3). Clearly, this was based on some perceived need for the protections.

Here, the Court's own research has not revealed any legislative materials which illuminate the legislative intent of the statute. However, several other Courts have.

As initially enacted in 1972, Correction Law § 24 concerned only corrections officers and employees. Probation officers and employees were not added until in 2011.

In 2009, the United States Supreme Court characterized the purpose of the statute as follows: “In passing Correction Law § 24, New York made the judgment that correction officers should not be burdened with suits for damages arising out of conduct performed in the scope of their employment. Because it regards these suits as too numerous or too frivolous (or both), the State's longstanding policy has been to shield this narrow class of defendants from liability when sued for damages.” Haywood v. Drown, 556 U.S. 729, 129 S.Ct. 2108, 173 L.Ed.2d 920 (2009).2

Further, the Haywood Court noted, the New York Attorney General had characterized Correction Law § 24 as “further[ing] New York's legitimate interest in minimizing the disruptive effect of prisoner damages claims against correction employees, many of which are frivolous and vexatious.”

In addition, the Court notes, in a more general context, the Court of Appeals has recognized the “ ‘formidable tasks’ of maintaining order and security in correctional facilities and protecting the safety of inmates and employees.” Arteaga v. State, 72 N.Y.2d 212, 532 N.Y.S.2d 57, 527 N.E.2d 1194 [1988]. Further, the Court of Appeals has noted, corrections officers should be free to act “undeterred by the fear of personal liability and vexatious suits, which could substantially impair the effective performance of a discretionary function.” Arteaga, 72 NY2d at 222, 532 N.Y.S.2d 57, 527 N.E.2d 1194 (Simons, J., dissenting).

In sum, the special protections provided by Correction Law § 24 were meant to address the particular and unique circumstances under which correction officers and employees performed their duties. In extending the protections to parole officers and employees, the Legislature necessarily determined that they faced the same or similar circumstances.

Here, the Court finds this legislative intent embodied in the language of the statute itself. Significantly, in the Court's view, the statute requires that the challenged conduct occur not only within the “scope of the employment” of the officer or employee, but also, “in the discharge of the duties by such officer or employee.”

In sum, in light of the legislative intent underlying Correction Law § 24, and in order to give meaning to all parts of the statute, it must be found that the protections afforded under the statute are only applicable when a protected officer or employee is both acting within the scope of his or her employment, and is “in the discharge of the duties of such officer or employee.” Indeed, only in such circumstances is the need for the protections engaged.

Here, although the Defendant was in the course of his employment at the time of the accident at issue, he was not in the discharge of his duties (directly overseeing parolees). Thus, the circumstances inherent in the work of parole officers and employees which give rise to the need for the special protections were not present. Indeed, to reach a contrary conclusion would be to produce an absurd result, to wit: It would distinguish this case, which is an otherwise typical pedestrian knock down action, from all other similar cases based solely on the random and unrelated fact that the Defendant was employed by the probation department at the time of the accident.

In sum, this action need not be dismissed pursuant to Correction Law § 24, and the Defendant's cross motion is denied.

As to the Plaintiff's motion.

A party seeking summary judgment bears the initial burden of establishing a prima facie entitlement to judgment as a matter of law by tendering competent evidence in admissible form sufficient to eliminate any triable, material issues of fact from the case. If the moving party fails to meet this burden, the papers submitted in opposition need not be considered. If the moving party makes such a prima facie showing, the burden shifts to the opposing party to demonstrate the existence of an issue of fact requiring a trial. Phillip v. D & D Carting Co., Inc., 136 A.D.3d 18, 22 N.Y.S.3d 75 [2nd Dept. 2015]; Dempster v. Liotti, 86 A.D.3d 169, 924 N.Y.S.2d 484 [2nd Dept. 2011].

There can be more than one proximate cause of an accident. Adobea v. Junel, 114 A.D.3d 818, 980 N.Y.S.2d 564 [2nd Dept. 2014]. However, to prevail on a motion for summary judgment on the issue of liability in a negligence case, the movant need no longer demonstrate that he or she was free from comparative fault. Davis v. Commack Hotel, LLC, 174 A.D.3d 501, 104 N.Y.S.3d 171 [2nd Dept. 2019].

A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law. Adobea v. Junel, 114 A.D.3d 818, 980 N.Y.S.2d 564 [2nd Dept. 2014].

Relevant to the case at bar, Vehicle and Traffic Law § 1146(1)(a) requires every driver of a vehicle to exercise due care to avoid colliding with any pedestrian upon any roadway, “and shall give warning by sounding the horn when necessary.” If a driver of a motor vehicle causes physical injury while failing to exercise due care in violation of subdivision (a), “then there shall be a rebuttable presumption that, as a result of such failure to exercise due care, such person operated the motor vehicle in a manner that caused such physical injury.” Vehicle and Traffic Law § 1146(2).

A driver also has a common-law duty to see that which should have been seen through the proper use of the senses. Barbieri v. Vokoun, 72 A.D.3d 853, 900 N.Y.S.2d 315 [2nd Dept. 2010].

An operator of a motor vehicle traveling with the right-of-way still has an obligation to keep a proper lookout and see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles. Fried v. Misser, 115 A.D.3d 910, 982 N.Y.S.2d 574 [2nd Dept. 2014]. Thus, a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident. Adobea v. Junel, 114 A.D.3d 818, 980 N.Y.S.2d 564 [2nd Dept. 2014].

In relevant part, Vehicle and Traffic Law §§ 1152 provides:

(a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.

However, Vehicle and Traffic Law § 1146 imposes a superseding duty on a motorist to exercise due care to avoid hitting a pedestrian, and the fact that a pedestrian crosses a street at a site other than a cross road is not prohibited, and is not negligence per se. Deitz v. Huibregtse, 25 A.D.3d 645, 808 N.Y.S.2d 737 [2nd Dept. 2006].

Here, on the record presented, the accident is completely unexplainable other than by driver distraction.

The Defendant testified not only that he saw the Plaintiff when he was still on the south side of the road (the collision occurred on the north side lane) and 45 feet away, but also, that he was driving only 5 to 10 miles per hour prior to and at the time of the collision. Further, although there is some mention of the Plaintiff “darting” in front of the vehicle by counsel, the Defendant did not testify as to any sudden movements by the Plaintiff. Rather, he averred that he thought that the Plaintiff would pass behind his vehicle. However, the basis for such a conclusion is unclear. Moreover, the Court notes, the damage to the Defendant's vehicle would appear inconsistent with a collision at 5 to 10 miles per hour.

In sum, the Plaintiff demonstrated, prima facie, that the Defendant was negligent in the happening of the accident.

In opposition, the Defendant failed to raise a triable issue of fact, including as to the contributory negligence of the Plaintiff.

Although the Plaintiff was not in the cross walk, he was closely adjacent to a marked cross walk, and was following the course of the cross walk. Further, given the angle of the cross walk (westerly), by the time he reached the westerly lane of travel, the Plaintiff's vehicle was approaching from his blind spot. Finally, the Plaintiff has diminished mental abilities.

In sum, the Plaintiff's motion is granted.

Accordingly, and for the reasons stated herein, it is hereby,

ORDERED, that the motion is granted, and the Plaintiff is awarded summary judgment on the issue of liability; and it is further,

ORDERED, that the cross motion is denied; and it is further,

ORDERED, that the parties are directed to appear for a conference on Tuesday, June 15, 2021, at 1:30 p.m., at the Orange County Supreme Court, Court room No.3, 285 Main Street, Goshen, New York, to determine how the matter shall proceed on the issue of damages, if the Courts are in session and open to the public. If the Courts are not open to the public at that time, the conference will be held virtually, by video conferencing, on said date, at a time to be designated by the Court.

The foregoing constitutes the decision and order of the Court.

FOOTNOTES

1.   The exact basis of the motion is not stated. Subsequent cases deem it to have been Correction Law § 24.

2.   The Haywood Court held that Correction Law section 24 was unconstitutional to the extent that it precluded a federal 18 USC 1983 claim in Supreme Court.

Robert A. Onofry, J.

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