Plaintiff Wins on Motion to Access Emergency 911 Records
In Abate v. County of Erie, 2017 NY Slip Op 05351 (4th Dep’t June 30, 2017), an unusually intense winter storm stranded plaintiff’s decedent inside his vehicle. The decedent called 911 at 3:50 a.m. to report his predicament. The dispatcher instructed the decedent to remain in his vehicle, and assured him that help would be forthcoming. Help did not arrive, however, until 1:37 a.m. on the following day. By that time, the decedent had passed away, still stranded inside his vehicle.
The plaintiff’s complaint alleged that the decedent’s death resulted from defendants’ negligent failure to rescue him during the storm. According to the plaintiff, the defendants breached a special duty to the decedent that attached as a result of his communications with the 911 service.
In the course of discovery, the plaintiff sought disclosure of the 911 records pertaining to the decedent’s emergency call. The plaintiff also sought disclosure of 911 records pertaining to other stranded persons at eight specified locations in the decedent’s vicinity. The defendants voluntarily disclosed the decedent’s 911 records, but they refused to disclose any 911 records pertaining to other stranded persons, arguing principally that the 911 records of non-parties were categorically exempt from disclosure by County Law § 308(4), which states that records of calls made to a municipality’s emergency 911 system “shall not” be made available to any entity or person other than government agencies and certain medical personnel.
The Fourth Department, upon examination of the legislative history of County Law §308(4), did not find anything suggesting that the intent of that provision was to preclude civil litigants from obtaining emergency records. The Court therefore concluded that the 911 records were within the scope of discovery authorized by CPLR article 31, and granted the plaintiff’s motion to compel the defendants to provide those records.
Claimant Granted Leave to Add Derivative Claim against County
In Darrin v County of Cattaraugus, 2017 NY Slip Op 05352, (4th Dep’t June 30, 2017), the trial court denied the claimant’s motion for leave to file a late notice of claim pursuant to General Municipal Law §50-e(5). The claimant was attempting to add a derivative claim for her husband’s loss of consortium.
The County argued it did not receive actual knowledge of the facts constituting the husband’s claim because it did not receive knowledge of the injuries or damages claimed by the husband. The Fourth Department reasoned that the claim was predicated on the exact same facts as the original claim, and noted that courts have generally allowed for leave to add a derivative claim for loss of consortium because of this.
The Court stated, “…we discern no rational basis upon which the court could have granted the application with respect to the wife but not the husband.”
Question of Fact Exists As To Whether Officer Acted With Reckless Disregard
In Perkins v. City of Buffalo, 2017 NY Slip Op 05360 (4th Dep’t June 30, 2017), the plaintiff sought damages for injuries sustained when her vehicle collided with a police vehicle. At the time of the accident, the officer was responding to an emergency call without his emergency lights or siren activated, and he ran a red light at an intersection. As the plaintiff entered the intersection with a green light, her vehicle struck the rear end of the police vehicle.
The Plaintiff moved for summary judgment on the issues of negligence and proximate cause, and the defendants cross-moved for summary judgment dismissing the complaint because the officer did not act with reckless disregard for the safety of others within the meaning of Vehicle and Traffic Law §1104(a) and (c). Those provisions hold an authorized emergency vehicle while involved in an emergency operation to a “reckless disregard” standard of care.
The Fourth Department agreed with the defendants that the reckless disregard standard should apply, but held both motions should have been denied, stating that a question of fact existed as to whether the officer “intentionally [performed an] act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and [did] so with conscious indifference to the outcome.”
Plaintiff’s Civil Rights Claim against City Will Move Forward
In Hall v. City of Buffalo, 2017 NY Slip Op 05361 (4th Dep’t June 30, 2017), the plaintiff was with his friend William Sager at a bar when an employee of the bar pushed Sager down a flight of stairs, causing injuries that ultimately resulted in Sager’s death. When the plaintiff went to check on Sager, he was told to leave the premises by defendant Robert Eloff, an off-duty police officer who was providing security at the bar. The plaintiff moved onto a public sidewalk, but Eloff nonetheless arrested him and made false statements to other officers that led to plaintiff being charged with criminal trespass in the third degree.
Among other things, the plaintiff sued the City of Buffalo and bar owner on the theory that police officers had conspired with the bar owner to have the plaintiff arrested without probable cause in order to suppress evidence of what had happened to Sager. The defendants moved to dismiss the complaint for failure to state a valid cause of action.
The Fourth Department rejected the defendants’ contention that the complaint failed to state a cause of action against them for false arrest in violation of 42 USC § 1983. In doing so, the Court rejected the defendants’ argument that the plaintiff’s allegations of conspiracy were merely conclusory.
If you have questions about these cases or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.
Prepared by Eric W. Marriott, Esq.