Stevens v. Town of E. Fishkill Police Dep't

198 A.D.3d 832

156 N.Y.S.3d 288

Cody STEVENS, plaintiff-respondent,

v.TOWN OF EAST FISHKILL POLICE DEPARTMENT, et al., appellants,Christy K. Coachman, et al., defendants-respondents.

2018–03314

Index No. 51405/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 14, 2021

October 13, 2021

Drake Loeb PLLC, New Windsor, N.Y. (Steven J. Gaba of counsel), for appellants.

Finkelstein & Partners, LLP, Newburgh, N.Y. (Marie M. DuSault of counsel), for plaintiff-respondent.

Alan B. Brill & Associates, LLP, New City, N.Y. (Charis G. Moore of counsel), for defendants-respondents.

LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, BETSY BARROS, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Town of East Fishkill Police Department, Town of East Fishkill, Police Officer Alexander Humphreys, and Police Officer Dennis Mullaney appeal from an order of the Supreme Court, Dutchess County (James V. Brands, J.), dated February 28, 2018. The order denied those defendants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendants Town of East Fishkill Police Department, Town of East Fishkill, Police Officer Alexander Humphreys, and Police Officer Dennis Mullaney which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against the defendant Town of East Fishkill Police Department, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with one bill of costs payable by the defendants Town of East Fishkill, Police Officer Alexander Humphreys, and Police Officer Dennis Mullaney to the respondents appearing separately and filing separate briefs.

The plaintiff allegedly sustained personal injuries in a single-vehicle accident which occurred on January 12, 2015, when schools were not in session because of inclement weather. The vehicle was occupied by a group of high school-aged teenagers.

Shortly before the accident, the defendants Police Officer Alexander Humphreys and Police Officer Dennis Mullaney stopped the vehicle, and after arresting the driver and one of the passengers for possession of marijuana, released the vehicle to the defendant Kevin C. Tatavitto. Tatavitto had a Class DJ driver license which did not permit him to operate a vehicle with more than one passenger who was under the age of 21 and not a family member (see Vehicle and Traffic Law § 501–b[2][b] ). At the time of the accident, Tatavitto was operating the vehicle with two passengers, including the plaintiff, both of whom were under the age of 21. The accident occurred after the vehicle stop, when the vehicle skidded on a patch of slush or ice and hit a tree.

The plaintiff commenced this action against the Town of East Fishkill Police Department, the Town of East Fishkill, Humphreys, and Mullaney (hereinafter collectively the Town defendants), the owner of the vehicle, and Tatavitto. The Town defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The Supreme Court denied the motion. The Town defendants appeal.

Departments such as the Town of East Fishkill Police Department do not have a legal identity separate and apart from the municipality and thus, cannot independently sue or be sued (see Town Law § 150[1] ; Brown v. City of New York, 192 A.D.3d 963, 965, 146 N.Y.S.3d 160 ; Warner v. Village of Goshen Police Dept., 256 F. Supp. 2d 171, 175–176 [S.D. N.Y.] ; Fanelli v. Town of Harrison, 46 F. Supp. 2d 254, 257 [S.D. N.Y.] ). Accordingly, the Supreme Court should have granted that branch of the Town defendants' motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against the Town of East Fishkill Police Department.

However, the Supreme Court otherwise properly denied the Town defendants' motion. Even assuming that the Town defendants established that the officers were engaged in a governmental function when they entrusted the vehicle to Tatavitto, they failed to establish, prima facie, that the officers did not owe the plaintiff a special duty (see Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 430–431, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; McLean v. City of New York, 12 N.Y.3d 194, 200, 878 N.Y.S.2d 238, 905 N.E.2d 1167 ), that the officers' actions were discretionary, meaning conduct involving the exercise of reasoned judgment (see Valdez v. City of New York, 18 N.Y.3d 69, 76, 936 N.Y.S.2d 587, 960 N.E.2d 356 ; ...