Click Back
Button to Return to Publication
SUPREME COURT OF NEW YORK,
APPELLATE DIVISION, FIRST DEPARTMENT
Claude Pierre
Lubecki,
Plaintiff, et al.,
v. The City of
New York, et al.,
Defendants
1413
304 A.D.2d 224; 758 N.Y.S.2d 610
March 27, 2003, Decided
March 27, 2003, Entered
TOM, J.
In this unusual case, we affirm
the judgment of the trial court except insofar as the apportionment of damages
under article 16 of the CPLR is concerned. We remand for a new trial solely on
the issue whether there was reckless disregard by police officers for the
safety of plaintiff's decedent and that of plaintiff Ramon Vargas Santiago such
as would deprive the municipal defendants of the statutory apportionment
provided by CPLR article 16. This tragic incident arose out of a 1993 police
action when New York City Police Department (NYPD) and Transit Authority Police
Department (TAPD) officers responded to the scene of a bank robbery. During the
pursuit of the bank robber, a hostage was killed. That death gives rise to the
issue of whether the City and the Transit Authority (prior to merger of the
TAPD and the NYPD) are jointly and [*227] severally liable along with the
robber, or whether the municipal defendants are entitled to apportionment of
liability pursuant to CPLR 1601.
On the morning of January 29,
1993, police officers Michael Moss and Edward Brown were on patrol when a
bystander alerted them to an ongoing bank robbery nearby and directed them to a
Chemical Bank on 91st Street and Broadway in Manhattan. As they responded, one
of the robbers, Sidney Fisher, fired at them with a large semi-automatic
handgun before fleeing north along Broadway with the officers in pursuit.
Meanwhile, Transit Officers Ronald Bauman and Anthony Savarese were on patrol in
the vicinity when they received a radio transmission regarding the robbery, and
they immediately saw the gunman running toward them. They exchanged shots, and
the robber continued his flight to and along West End Avenue and then toward
Riverside Drive. During this chase, numerous shots were fired by the robber as
well as by police. No shots hit the robber, despite some being fired from
relatively short distances. Bauman was hit in his bulletproof vest but was
uninjured. As the robber passed 202 Riverside Drive, he grabbed Bonnie Vargas,
who had just exited her apartment building.
By now, police officers Patrick
White, Jose Brizuela, Silvano Brajuha, Eugene Kastner and Michael Sosa were
also responding from the nearby 24th precinct. By this time, the robber was
backed against 202
Riverside Drive, which was enclosed by a fence. He was surrounded on his other
three sides by police officers. The robber held Ms. Vargas in a chokehold as he
waved his handgun toward the officers. Clearly, he had nowhere to go, the
flight and pursuit were over, and the robber and the police were in a standoff.
Capture of the gunman was prevented only by the fact of the hostage.
Bauman shouted "just look around,
there's no place to go, it's over, just put down your gun." Although the
robber subsequently fired in the general direction of police, they were all
behind cars and other obstructions and they did not return fire at this time.
No civilians, other than the hostage, were in the open or otherwise exposed to
gunfire from the robber at this time.
[**613] As the standoff
continued, Officer White maneuvered his way from across the street to the south
side of Riverside Drive, about 10 or 15 feet from where the robber was located.
Around this time, the robber started to slowly maneuver toward Riverside Drive.
The robber held the hostage in front of him, [*228]but was not pointing a gun
at her head or chest. While under cover of a parked car, White positioned
himself to fire at the gunman. The events that
followed are less than clear in particular details, owing to different
points of observation by different officers and varying degrees of recall
regarding split-second occurrences, but a general narrative can be discerned.
From the outset, no ranking officer gave orders.
As officer White stood and positioned
himself, the robber shot in his direction. Although White was uninjured,
Officer Kastner, misapprehending what White was doing, thought that White had
been hit and consequently had fallen between parked cars. White testified that
he had intentionally ducked. Kastner, thinking he was returning fire when an
officer was down, shot at the robber. These shots initiated a volley of gunfire
by the robber and other officers who, hearing the shots, believed that a gun
battle had commenced. Kastner believed that the next shot was fired by Sgt.
Venezia, a ranking officer, who, rather than taking command, simply joined in
the shooting. Although Kastner testified at trial that he thought that the
hostage had been able to break away, this was at variance with his deposition
testimony that the robber was still using the hostage as a shield when he shot
at the robber. Officer Brizuela thought that the hostage either tripped or fell
when the firing began, and he fired four shots as he ran toward the robber. He
also testified that no one took command and no orders had been given. Officer
Brajuha thought that the hostage managed to move a couple of steps away when
the firing began. Brajuha conceded during cross-examination that it would violate
standard police procedure for any officer to fire a weapon while a suspect held
a hostage. Bauman, too, conceded that standard
police procedures prohibit an officer from firing if doing so would place an
innocent person in jeopardy. He initially withheld his fire because of the
hostage and noted that all officers were adequately protected and that the
robber never pointed his gun at the hostage or seemed to threaten her directly.
However, upon hearing the shooting, Bauman also started shooting. Bauman himself
fired 13 to 15 rounds. Officer Sosa also initially declined to return fire,
fearing that the hostage would be struck. But when he saw Brizuela fire, Sosa
changed position and began firing. Sosa admitted having had no idea where the
hostage was at that time. Sosa testified that no one took command and no orders
were given. Sergeant Savarese testified that he did not fire because he thought
that the hostage was too close to the robber. Savarese also recalled [*229]
that at this time all police officers were adequately protected by cover.
Savarese was one of the ranking officers at the scene, and though he had a
radio, he failed to take command. Not being able to think of any orders to give, he gave
none. Officers Brown, Moss and White could clearly see, though, that the
hostage was still being held by the robber when the firing began.
A bystander, Hagit Gal-Ed, who
observed the incident from an upstairs window, testified that all officers at
all times were under cover, and that the hostage at all relevant times was
still firmly held by the robber. She believed that more than 30 officers were
present by now. She heard some officers yell at the robber to drop the gun, and
some officers urging others to shoot the robber. No one seemed to be in
command. By the time the shooting started, the robber, with his [**614]
hostage, was positioned directly below her window. The robber fired the first
shot, toward the officers. But, she testified, he had never placed the gun
against the hostage's head, the hostage was firmly in his grip and positioned
directly in front of him, and police then returned fire. Another bystander,
Leon Marashaj, observed the pursuit and standoff from the street near the back
of his UPS truck. Marashaj saw the robber, with the building at his back,
surrounded by a semi-circle of police and saw that at all times he held the hostage in a chokehold in front of him.
When the robber fired twice toward police, they immediately returned fire.
The hostage's brother, plaintiff
Ramon Santiago, also lived at 202 Riverside Drive, where he worked as a
handyman. His father, with whom the hostage lived, was the building's
superintendent. As he let his sister out of the service entrance that day, the
robber grabbed her and Santiago heard police telling the robber to let her go.
When Santiago also pleaded with the robber to let her go, the robber told him
to go inside and not to worry about it, that everything would be alright.
Santiago then thought that letting the police handle the matter was the best course.
When he went around another entrance, he saw that the robber, with his sister,
had maneuvered about 10 feet further toward Riverside Drive. He thought that
about 20 or 25 officers were present. Police were shouting that the robber
should drop the gun or that they would kill him. He testified that the robber
shot once, without return fire, but then fired again, after which many officers
returned fire.
After the shooting stopped, Santiago went
to his sister and spoke to her. She turned her head and tried to speak, began
[*230] rolling her eyes and moving her fingers. He observed her leg was
"split in half" and blood was coming from her groin and chest. The
paramedics gave her a couple of electric shocks and took her by ambulance to
the hospital. Santiago went to the hospital by taxi and waited for about an
hour before a doctor told him that Ms. Vargas "just died."
The medical
examiner testified that Ms. Vargas suffered three gunshot wounds to her body.
One bullet penetrated her left thigh and traveled for about five inches before
exiting on the other side of her thigh, a second bullet entered her right
ankle, shattering her tibia and her fibula, and the third bullet entered her
chest, pierced her heart and lodged in her back. It was determined that Officer
Bauman's bullet struck Ms. Vargas in the leg and left foot. The parties
stipulated that the third and fatal shot which struck Ms. Vargas in the heart
was fired by an NYPD officer's .38 caliber gun, but it could not be ascertained
which officer's gun fired that bullet.
The
testimony of bystanders, though inconsistent with some police testimony, is not
fatally inconsistent with all police testimony and does not necessarily detract
from police credibility in tote, considering the different vantage points and
different impressions of what was occurring during a fast-breaking and tense
event. To the contrary, it provides some clarity. It also supports the
reasonable conclusion that can be drawn from the collective testimony of the
officers themselves that there was confusion as to who started firing and why,
but that police return fire occurred under circumstances where the hostage was
not safely removed from imminent deadly danger, and that no one else had been
in imminent danger so as to justify fire by the police.
Plaintiffs commenced an action
against defendants for the wrongful death of decedent Bonnie Vargas as a result
of the conduct of the police officers. A claim for emotional distress was also
interposed by Ramon Santiago, as a result of being in the [**615] zone of
danger and witnessing the death of his sister.
Relevant portions of the Patrol Guide, §
104-1 addressing the use of deadly physical force, and § 117-12 addressing
procedures to be employed when a
hostage is taken or a suspect is barricaded, were admitted into evidence
by plaintiffs. An interim order supplementing § 104-1 also was introduced. Both
provisions direct that a police officer may not discharge a weapon when doing
so will unnecessarily endanger innocent persons. For a hostage situation,
officers on the scene must contact a hostage negotiator, Emergency Services
[*231] must be contacted and firearms control must be established and
maintained.
Plaintiff's expert was Henry
Branche, a 23-year NYPD veteran. His additional bona fides were well
established. He testified that any officer who fired his weapon under
circumstances that would endanger innocent life violated the protocols and
procedures set forth in the NYPD Patrol Guide. Branche also testified that
further violations occurred when the officers at the scene failed to summon a
hostage negotiator from the Emergency Services Unit, and when a ranking officer
at the scene failed to take command and establish control over the use of
firearms under these circumstances. More specifically, he testified that White
violated procedure when he maneuvered himself into position, and stood up
exposing himself, in order to try to get a shot at the robber while the robber
held the hostage, under circumstances where the hostage's life was thereby
imminently threatened; that Brizuela violated procedures by firing four shots
as he ran in the direction of the robber and the hostage; that Sosa violated
procedures by shooting at the robber without knowing the location of the
hostage; that Kastner violated procedures by shooting at the robber
notwithstanding the robber's use of the hostage as a shield; that Bauman
violated procedures by not only shooting at the robber under these
circumstances, but also by the sheer number of the shots he fired; and that it
was an "egregious" violation of procedures for a ranking officer not
to have taken command and not to have established firearms control. Moreover,
it was a violation for these officers not to have followed procedures specifically
promulgated to address hostage situations.
Defendants' expert was Frank
Boltz, a 27-year NYPD veteran who was a recognized hostage expert and who had
devised the NYPD procedures for hostage situations. He testified that the scene
remained unstable, and that the gunman was still seeking to flee, so that the
hostage provisions of the Patrol Guide were inapplicable to this situation.
However, he acknowledged that once it was apparent that a hostage had been
taken, officers should have refrained from action that would endanger the
hostage. More specifically, he conceded that Officer White's action contravened
proper procedure insofar as a hostage was taken, and that even if the robber
had fired at White, other officers should not have returned fire so long as the
officers had good cover. Further, Bauman's act of firing so many shots under
these circumstances also violated proper procedure.
[*232]
Defendants sought an instruction allowing for apportionment of their liability
under CPLR article 16. The request was denied on the basis of
then-authoritative caselaw, that has since been eclipsed by the Court of
Appeals' ruling in Rangolan v County of Nassau, (96 N.Y.2d 42, 725 N.Y.S.2d
611, 749 N.E.2d 178). As such, the jury did not have the opportunity to make findings
relevant to the apportionment of liability issue.
The jury found defendants to
have been negligent and that their negligence caused the death of decedent
Bonnie Vargas. [**616] Her estate was awarded $4.5 million for her conscious
pain and suffering under the verdict. Upon
defendants' motion to set aside the verdict, the trial court reduced
this award to $3 million. Plaintiff Santiago was awarded $969,001 for emotional
distress. Defendants appeal.
Defendants
seek reversal on the basis of various evidentiary matters, and also on the
basis that they were denied an opportunity to seek limitation of their
liability by apportionment of fault and the consequential mitigation of their
equitable share of damages. As for the evidentiary matters, defendants
challenge, inter alia, the weight and sufficiency of the evidence; argue that
police were justified in using deadly physical force by virtue of their
professional judgment and that, in any event, recklessness is the proper
standard under the factual circumstances of this case. Defendants also argue
that police guidelines were improperly utilized as a basis for finding that a
duty of care was violated; that the court erred in charging negligence as the
appropriate standard of care; that the NYPD Patrol Guide and Interim Order
regarding the use of deadly physical force and how to address hostage
situations was improperly admitted into evidence and was improperly emphasized
on the verdict sheet; and, the issue on which we presently focus, that
appropriate instructions regarding apportionment were not provided.
Defendants contend that they
were entitled to judgment as a matter of law because, pursuant to Penal Law §
35.30(1)(c), the officers were entitled to use deadly physical force in an
attempt to arrest the gunman. However, defendants in this civil action may not
claim the defense of justification applicable only as a defense to criminal
charges especially insofar as they are not defending against criminal charges
(McCummings v New York City Transit Authority, 81 N.Y.2d 923, 597 N.Y.S.2d 653,
613 N.E.2d 559, cert denied 510 U.S. 991, 126 L. Ed. 2d 450, 114 S. Ct. 548).
It must be recognized that this is a common law negligence case sounding in
wrongful death and personal injury claims predicated on the theory that
responding police [*233] officers, in utilizing deadly physical force, did not
exercise the degree of care which would reasonably be required of police
officers under similar circumstances (see McCummings v New York City Transit
Authority, 81 N.Y.2d 923, 925, 597 N.Y.S.2d 653, 613 N.E.2d 559). Typically,
such a case presents sharp factual disputes not amenable to summary dismissal
and the jury must determine the issue of liability (id. at 926). On the
evidence presented, the court properly denied defendants' pre-verdict motions
to dismiss. As a common law negligence
case, standards and theories applicable to criminal prosecutions for the use of
deadly physical force or for statutory claims are not applicable under the
circumstances of this case (McCummings v New York City Transit Authority, supra
at 927, distinguishing Tennessee v Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S.
Ct. 1694). Penal Law § 35.30(1)(c) has no application to this negligence
action.
Nor is this a proper case for
the application of the professional judgment rule. A government entity acting with discretionary or reasoned
judgment is immune from negligence lawsuits (Tango v Tulevech, 61 N.Y.2d 34, 471
N.Y.S.2d 73, 459 N.E.2d 182). Defendants contend that they are entitled to
dismissal because the professional judgment rule applies to immunize the
conduct of the police officers. The
professional judgment rule or "judgment error" rule is based on
principles which give recognition to the fact that the government has been
entrusted to make certain judgments and determinations in planning, designing
and establishing standards ([**617] Rodriguez v City of New York, 189 A.D.2d
166, 595 N.Y.S.2d 421). A municipality is not held to a standard of perfect judgment, but only reasoned judgment.
The professional judgment rule would insulate the municipal employer from
liability for a decision "where the . . . conduct involves the exercise of
professional judgment such as electing one among many acceptable methods of
carrying out tasks, or making tactical decisions that, in retrospect show poor
judgment" (Kenavan v City of New York, 70 N.Y.2d 558, 569, 523 N.Y.S.2d
60, 517 N.E.2d 872). Hence, when a commanding officer gave a discretionary
order not to shoot at an armed mentally disturbed person barricaded inside a
house, under circumstances where a negotiator was present, and that person then
fatally shot a police officer, the unfortunate consequence of the commander's
order did not invalidate the order as an acceptable tactical decision among
others when it was given, so that the municipal employer was not responsible
for the police officer's death (McCormack v City of New York, 80 N.Y.2d 808,
587 N.Y.S.2d 580, 600 N.E.2d 211; accord Flynn v City of New York, 258 A.D.2d
129, 693 N.Y.S.2d 569).
However, the immunity afforded a municipality for its
employee's discretionary conduct does not extend to situations [*234] where the
employee, a police officer, violates acceptable police practice
(Rodriguez, supra at 178; see Velez v City of New York, 157 A.D.2d 370, 373,
556 N.Y.S.2d 537, lv denied 76 N.Y.2d 715, 564 N.Y.S.2d 718, 565 N.E.2d 1269). Hence, the judgment error rule
is not triggered by the action of a police officer who injures an innocent
bystander in an altercation involving a violation of established police
guidelines governing the use of deadly physical force by police officers (see
e.g. Summerville v City of New York, 257 A.D.2d 566, 567, 683 N.Y.S.2d 579, lv
denied 94 N.Y.2d 755, 723 N.E.2d 567, 701 N.Y.S.2d 712) as is evidenced in the
above factual narrative.
Turning to the rules and
guidelines set forth in the Police Department Patrol Guide and the Interim
order, defendants contend that these materials, which are neither statutes nor
ordinances, may not be used as a basis for imposing liability against the
municipality. If this case involved the application of the "firefighter's
rule," or the statutory vehicle for relief from that common law rule
provided by General Municipal Law § 205-e, defendants might have a point
(see e.g. Galapo v City of New York, 95 N.Y.2d 568, 721 N.Y.S.2d 857, 744
N.E.2d 685; Flynn v City of New York, 258 A.D.2d 129, 693 N.Y.S.2d 569). However, it does not. Plaintiffs
here are not injured police officers or other uniformed service municipal
employees seeking to recover for their own injuries pursuant to § 205-e.
Rather, they are private citizens injured by police officers' conduct. The policy directives that disallow the use
of the Patrol Guide to prove municipal negligence in cases involving the application
of General Municipal Law § 205-e (see Galapo, supra at 576), do not operate
when the issue is the standard of care to be employed by police officers using
deadly physical force against others during which an innocent bystander is
injured or killed. Moreover, these departmental manuals do not impose a
higher duty of care than that appropriate for common law negligence and hence,
in a case such as this, do not pose the risk that internal departmental
memoranda will be improperly substituted for traditional common law standards
establishing the relevant duty of care (see e.g. Clarke v New York City Transit
Authority, 174 A.D.2d 268, 580 N.Y.S.2d 221); Rodriguez, supra; Summerville,
supra). Accordingly, we reject defendants' challenge to the admissibility
[**618] of these materials for purposes of evaluating whether the officers
adhered to or materially deviated from prescribed protocol in dealing with
hostage situations.
In this case, the Patrol Guide
established when officers may discharge their weapons, and expert testimony
established the impropriety of discharging a weapon, when doing so
unnecessarily [*235] endangers an innocent bystander. Several police
officers acknowledged that it was against police procedures to discharge their
weapons when an innocent person was in close proximity to the suspect. Here,
decedent was held as a human shield in the line of fire. Moreover, the
testimony showed that police procedures applicable to hostage situations were
not followed. It was undisputed that a hostage negotiator was never called,
emergency services were never called, no ranking officer took control although
two sergeants were present, and no commands in furtherance of firearms control
were given. Thus, the evidence established that the police violated clearly
established protocols and procedures, rendering the professional judgment rule
inapplicable to immunize their affirmative acts of negligence (Rodriguez v City
of New York, supra).
Defendants
maintain that the court erred in failing to instruct the jury that liability
for a violation of the Police Guidelines must be based on a
"recklessness" standard. They argue that the public policy
underlying Vehicle and Traffice Law
(VTL) § 1104(e) which permits civil liability only upon finding that the driver
of an emergency vehicle drove with "reckless disregard for the safety of
others" (see Saarinen v Kerr, 84 N.Y.2d 494, 501-502, 620 N.Y.S.2d 297,
644 N.E.2d 988; O'Connor v City of New York, 280 A.D.2d 309, 719 N.Y.S.2d 656,
lv denied 96 N.Y.2d 716, 754 N.E.2d 1114, 730 N.Y.S.2d 31) is equally
applicable to the exigent circumstances of a police shooting during a hostage
situation. Defendants' argument is unpersuasive.
While both
situations may present emergencies, VTL
§ 1104 specifically permits conduct that would otherwise be actionable,
allowing the driver of an "authorized vehicle" to exceed the speed
limit and disregard other traffic regulations. It is this privilege that is
circumscribed by the recklessness standard (see Saarinen, supra at 499-500). By
contrast, the Police Guidelines concerning the discharge of a firearm during
hostage situations require officers to exercise restraint even in the face of
an emergency. The actions of the officers should therefore be judged by the
ordinary standards of reasonable care with respect to the Police Guidelines.
The issue of recklessness raises
the further question of whether apportionment is required under CPLR article
16, insofar as reckless conduct forms the basis of an article 16 exemption disallowing
apportionment. Defendants argue that they were entitled to an instruction on
apportionment under CPLR article 16.
CPLR article 16 was enacted to limit the liability of certain defendants
to their equitable share of fault in [*236] carefully defined
circumstances. Section 1601 states
that: "Notwithstanding any other provision of law, when a verdict . . . is
determined in favor of a claimant in an action involving two or more
tortfeasors jointly liable or in a claim against the state and the liability of
a defendant is found to be fifty percent or less of the total liability
assigned to all persons liable, the liability of such defendant to the claimant
for non-economic loss shall not exceed that defendant's equitable share
determined in accordance with the relative culpability of each person causing
or contributing to the total liability for non-economic loss . . . ."
Hence, under CPLR 1601, defendants
would mitigate common law joint and several liability [**619] if they can
demonstrate that they are responsible for only 50% or less of the total
liability; in that event, such a defendant's responsibility for non-economic loss would not exceed its equitable share
(see Morales v County of Nassau, 94 N.Y.2d 218, 223, 703 N.Y.S.2d 61, 724
N.E.2d 756). Section 1602, though, specifically creates exceptions under
various enumerated situations. The exception that is presently germane is that
the general limitation on liability set forth in § 1601 shall "not apply
to any person held liable for causing claimant's injury by having acted with
reckless disregard for the safety of others" (§ 1602[7]). In the present
case, the court entertained, but rejected, defendants' request for an
instruction of apportionment of liability between defendants and non-party tortfeasors
pursuant to § 1601.
The
apportionment issue is complicated by the timing of the decision of the IAS
court and the subsequent ruling by the Court of Appeals in Rangolan v County of
Nassau (supra). Plaintiffs concede that the trial court's decision, though
purportedly correct at the time, is inconsistent with Rangolan. Insofar as that
instruction was not provided, the jury had not had an opportunity to make
findings on any article 16 exemption. The court's reasoning was predicated on
then-existing law under § 1602[2][iv],
which provides that the statute may not be construed to modify any liability
imposed by reason of a non-delegable duty or as a result of the doctrine of
respondeat superior. This section, as interpreted by the trial court, barred
application of § 1601 apportionment as to "any liability arising by reason
of a non-delegable duty or by reason of the doctrine of respondeat
superior" (see e.g. Cole v Mandell Food Stores, Inc., 93 N.Y.2d 34, 687
N.Y.S.2d 598, 710 N.E.2d 244; Cortes v Riverbridge Realty Co., 227 A.D.2d 430,
642 N.Y.S.2d 692). In the present case, defendants' liability was predicated on
a non-delegable duty. However, the trial court's interpretation of §
1602[2][iv] [*237] was rejected by the subsequent Rangolan ruling. Rangolan found § 1602[2][iv] to be only
"a savings provision that preserves principles of vicarious liability. It
ensures that a defendant is liable to the same extent as its delegate or
employee, and . . . CPLR article 16 is not construed to alter this liability .
. . . Similarly, CPLR 1602[2][iv] prevents an employer from disclaiming
respondeat superior liability under article 16 by arguing that the true
tortfeasor was its employee." However, Rangolan stated that the
municipality itself may still seek apportionment between itself and other
tortfeasors (Rangolan, supra 96 N.Y.2d at 47), a conclusion that fundamentally
undermined the reasoning of the trial court when it declined to give the
article 16 apportionment instruction. Hence, § 1602[2][iv] is not a bar to § 1601
apportionment, but a provision ensuring that such a defendant will remain
liable. As such, the court's reason for withholding the issue of apportionment
from the jury is no longer valid and defendants are now entitled to the
requested instruction.
Of
course, plaintiffs would then be
entitled to demonstrate that an enumerated exemption barred the application of
article 16 apportionment, so that defendants' request ultimately might prove
futile. Plaintiffs rely on the exemption provided in § 1602[7], insofar as
the article 16 limitations do not
benefit a defendant whose reckless disregard for the claimant's safety caused
injury. If the police officers in this case acted in reckless disregard of the
hostage's or of her brother's safety, then defendants may not rely on article
16 to limit their liability. Defendants contend that they were on notice
regarding only common law negligence, and hence defended against negligence.
They note that [**620] negligence does not subsume a higher standard, so that
proof of negligence does not equate with proof of recklessness. As such, they
argue that the present record does not allow for any particular finding on the issue of recklessness. Insofar as
this exception was not pleaded, we agree with the City that there is a
deficiency of notice. Section 1603
requires that the plaintiffs "allege and prove by a preponderance of the
evidence that one or more of the exemptions . . . applies." § 1603 is a
notice provision, intended to alert a
defendant that it may be subject to the full brunt of the judgment (Morales v
County of Nassau, 94 N.Y.2d 218, 223, 703 N.Y.S.2d 61, 724 N.E.2d 756; see
Roseboro v New York City Transit Authority, 286 A.D.2d 222, 223, 729 N.Y.S.2d
472, appeal dismissed 97 N.Y.2d 676, 738 N.Y.S.2d 288, 764 N.E.2d 391). Since
the jury was not charged on the theory of recklessness, [*238] and we cannot
make such a finding without offering the City an opportunity to defend against
that theory, a new trial must be granted on the issue of apportionment and the
applicability of CPLR 1602(7).
For procedural reasons unique to Morales, amendment of the pleadings in that case was precluded. However, Morales would not preclude timely and appropriate amendment in the present case. We have noted elsewhere that the statute does not require that an amendment be requested at any particular time, and we have exercised liberality, especially when the defendant cannot demonstrate real prejudice and the amendment is predicated on a prima facie factual presentation (Detrinca v DeFillippo, 165 A.D.2d 505, 510, 568 N.Y.S.2d 586).
In view of
the unusual circumstance of the present case, that an originally valid
exemption (CPLR 1602[2][iv]) was pleaded and proved pursuant to § 1603,
rendering unnecessary the inclusion of additional § 1602 exemptions, but that
subsequent case law invalidated the original ruling, and that the evidence as
adduced does not render plaintiffs' theory of reckless disregard meritless,
plaintiffs should be provided the opportunity to seek amendment of the
pleadings to include § 1602(7) (cf. Roseboro, supra). Accordingly, we grant
that motion and deem the pleadings amended to allege that the police officers'
reckless disregard of the decedent's safety as well as that of plaintiff Ramon
Vargas Santiago bars defendants' reliance on the limitations set forth in §
1601.
Finally, we find no basis to
disturb the judgment as to damages. The award of $3 million damages to the
decedent does not deviate materially from reasonable compensation considering
the pre-impact terror experienced and the significant injuries sustained before
her death. Santiago's testimony, supported by medical and other evidence, amply
supported his claim of emotional distress.
Accordingly, the judgment of
Supreme Court, New York County (Louise Gruner Gans, J.), entered January 19,
2001, which awarded plaintiff estate the principal sum of $3 million for
decedent's pain and suffering and a stipulated amount for pecuniary loss, and
awarded plaintiff Santiago $969,001 for emotional distress, should be modified,
on the law, to remand for further proceedings on the issue whether defendants
may avail themselves of the apportionment provisions of CPLR article 16, and to
deem the complaint to have pleaded the standard of reckless disregard [*239] by
police officers in this case, as required by and defined in CPLR 1602(7), to
which defendants will also be allowed to responsively plead, and otherwise
affirmed, without costs.
All concur.
ENTERED:
MARCH 27, 2003