Mfon v. County of Dutchess et al

Filing 60

OPINION & ORDER re: 52 MOTION to Strike Document No. 44 , filed by Dutchess County Sheriff's Department, County of Dutchess, 32 MOTION for Summary Judgment , filed by Dutchess County Sheriff's Department, County of Dutchess. The Court grants Defendants' Motion To Strike and Motion for Summary Judgment. The Clerk of Court is respectfully directed to terminate the pending Motions, (Dkt. Nos. 32, 52), enter judgment for Defendants, and close this case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/9/2017) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

EMMANUEL MFON,
Plaintiff,
-v-

No. 14-CV-6922 (KMK)
OPINION & ORDER

COUNTY OF DUTCHESS, et al.,
Defendants.

Appearances:
William Greenberg, Esq.
The Greenberg Law Firm, LLP
Purchase, NY
Counsel for Plaintiff
David L. Posner, Esq.
McCabe & Mack LLP
Poughkeepsie, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Plaintiff Emmauel Mfon (“Plaintiff”), a citizen of Sierra Leone, brings the instant Action
against the County of Dutchess and Dutchess County Sheriff’s Department (“Defendants”),
alleging that Defendants’ gross negligence and recklessness during a police pursuit were the
proximate cause of a car accident that resulted in injuries to Plaintiff. (See Compl. (Dkt. No. 1).)
Before the Court are Defendants’ Motion for Summary Judgment and Motion To Strike the
Affidavit of Gareth Jones (the “Motions”). (Dkt. Nos. 32, 52.) For the reasons to follow, both
Motions are granted.

I. Background
A. Factual Background
On May 10, 2014, Deputy Jeffrey Basler (“Basler”) was the road patrol deputy working
the midnight to 8:00 a.m. shift in Zone 5, which includes the Towns of Beekman and Unionvale.
(Defs.’ 56.1 Statement (“Defs.’ 56.1”) ¶¶ 5–6 (Dkt. No. 47).) 1 Basler has been a road patrol
deputy in the Dutchess County Sheriff’s Office for 13 years. (Id. ¶ 9; Pl.’s Resp. to Defs.’ Rule
56.1 Statement (“Pl.’s 56.1 Resp.”) ¶ 9 (Dkt. No. 46).) That night, Sergeant Everett Pearsall
(“Pearsall”) was Basler’s shift supervisor. (Pl.’s Statement of Undisputed Material Facts
Pursuant to Rule 56.1 (“Pl.’s 56.1”) ¶¶ 29, 31 (Dkt. No. 46).) 2 At approximately 12:30 a.m. on
May 10, 2014, Basler was en route to begin his shift patrolling Zone 5 when he first encountered
a dual-wheeled pick-up truck operated by Jonathan Besze (“Besze”). (Defs.’ 56.1 ¶¶ 7, 15; Pl.’s
56.1 Resp. ¶ 15.) After encountering the Besze vehicle, Basler pursued it from Noxon Road into
the Town of Poughkeepsie and then into the City of Poughkeepsie. (Defs.’ 56.1 ¶ 8.) When
Basler first saw the Besze vehicle around 12:30 a.m., it was “sliding sideways onto Noxon Road
from Patrick Lane passing through a stop sign without signaling,” (Defs.’ 56.1 ¶ 14; Pl.’s 56.1
Resp. ¶ 14), and each of the inner rear tires was flat, (Defs.’ 56.1 ¶ 15; Pl.’s 56.1 Resp. ¶ 15).
Defendants assert—and Plaintiff disputes—that Besze’s vehicle nearly collided with a passenger
vehicle proceeding southbound on Noxon Road. (Defs.’ 56.1 ¶ 16; Pl.’s 56.1 Resp. ¶ 16.) It is

1

Defendants originally filed a Rule 56.1 Statement that omitted ¶¶ 4–8. (See Dkt. No.
33.) Defendants thus filed an amended statement, (Dkt. No. 47), and although Plaintiff identifies
the omission in the original submission, Plaintiff did not file a response to the amended
submission. Accordingly, the Court assumes Plaintiff does not dispute those statements.
2

Pearsall has since been promoted to the position of Lieutenant.
2

undisputed that at the time of the pursuit, the roads over which it took place were clear and dry
and there was no precipitation. (Defs.’ 56.1 ¶¶ 12–13; Pl.’s 56.1 Resp. ¶¶ 12–13.)
Upon observing the Besze vehicle, Basler activated his overhead lights and siren with the
intention of stopping the vehicle as a result of its violations of the Vehicle and Traffic Law and
for reckless operation. (Defs.’ 56.1 ¶ 17; Pl.’s 56.1 Resp. ¶ 17.) 3 The Besze vehicle continued
southbound for a couple of hundred yards, made a left turn off the road onto the lawn of a
property abutting an intersection, and cut across the property and re-entered the road, continuing
northbound. (Defs.’ 56.1 ¶ 18; Pl.’s 56.1 Resp. ¶ 18.) Basler then radioed the Sheriff’s Office
and advised that he had a “failure to comply” and provided his location, direction of travel, and
speed. (Def.’s 56.1 ¶ 21; Pl.’s 56.1 Resp. ¶ 21.) The speed limit on Noxon Road is 45 mph and
Besze was traveling 50 mph. (Defs.’ 56.1 ¶¶ 22–23; Pl.’s 56.1 Resp. ¶¶ 22–23.) Deputy Wittek
(“Wittek”) was driving on Route 55 after his 4:00 p.m. to midnight tour of duty when he heard
Basler’s radio transmissions regarding the “failure to comply,” and joined Basler in the pursuit of
Besze. (Defs.’ 56.1 ¶¶ 30–31; Pl.’s 56.1 Resp. ¶¶ 30–31.) After observing Besze’s vehicle,
Basler formed the opinion that Besze was intoxicated because, in his experience as a deputy,
motorists do not operate vehicles in the fashion he had just observed while sober. (Def.’s 56.1
¶ 24; Pl.’s 56.1 Resp. ¶ 24.)
Defendants aver, and Plaintiff disputes, that throughout the pursuit, there was no
vehicular or pedestrian traffic traveling along the route. (See, e.g., Defs.’ 56.1 ¶¶ 26–27, 33–34,
36–38, 40–42, 53–54; Pl.’s 56.1 Resp. ¶¶ 26–27, 33–34, 36–38, 40–42, 53–54.) 4
3

Plaintiff disputes the fact that Basler activated his lights and siren simultaneously, but
otherwise agrees with the statement. (Pl.’s 56.1 Resp. ¶ 17.)
4

In support of the opposition to summary judgment, Plaintiff submits the Affidavit of
Joshua Brill (“Brill”), the passenger in Besze’s vehicle, which indicates that Brill “saw between
[12] and [20] other cars on the road” during the pursuit. (Aff. of Bill Greenberg Ex. Q.)
3

While following Besze, Basler radioed headquarters with Besze’s license plate number in
an attempt to identify the owner of the vehicle, but the Besze vehicle had a California license
plate and it did not match the vehicle’s registration. (Defs.’ 56.1 ¶¶ 66–67; Pl.’s 56.1 Resp.
¶¶ 66–67.) Sergeant Neil Stuart (“Stuart”) obtained permission to set up stop sticks on Raymond
Avenue at its intersection with Collegeview Avenue in an effort to prevent Besze from
continuing to flee from Basler. (Defs.’ 56.1 ¶ 97; Pl.’s 56.1 Resp. ¶ 97.) At one point during the
pursuit, Besze’s vehicle attained a speed of 72 mph on College Avenue. (Defs.’ 56.1 ¶ 79; Pl.’s
56.1 Resp. ¶ 79.) It is undisputed that the pursuit lasted about 10 minutes and covered
approximately nine miles. (Defs.’ 56.1 ¶ 103; Pl.’s 56.1 Resp. ¶ 103.)
At the intersection of North Cherry Street and Main Street in Poughkeepsie, Plaintiff’s
vehicle was struck by Besze’s vehicle. (See Aff. of Bill Greenberg Ex. K (Dkt. No. 41).)
Plaintiff sustained a cerebral concussion and traumatic brain injury as a result of the accident.
(Pl.’s 56.1 ¶ 2.) After the collision, Besze was arrested and charged with, among other offenses,
aggravated vehicular assault, a C Felony, in violation of Penal Law § 120.04-a(3), Driving While
Under the Influence of Alcohol, an E Felony, in violation of Vehicle and Traffic Law §§ 1192(3)
and 1193(1)(c)(i), and two counts of Unlawful Fleeing a Police Officer in a Motor Vehicle, E
Felonies, in violation of Penal Law § 270.30, all of which Besze admitted at his plea hearing.
(Defs.’ 56.1 ¶¶ 100–02; Pl.’s 56.1 Resp. ¶¶ 100–02.)
B. Procedural History
Plaintiff filed his Complaint on August 25, 2014, (Dkt. No. 1), and Defendants answered
on October 30, 2014, (Dkt. No. 5). On April 29, 2016, Defendants filed their Motion for

In his Affidavit, Brill also states that “[a]t one point, . . . Besze did donuts in the roadway
to antagonize police.” (Id.)
It bears noting that Brill does not contradict Basler’s belief that Besze was intoxicated.
4

Summary Judgment and accompanying papers. (Dkt. Nos. 32–37.) Plaintiff filed his opposition
and accompanying papers on June 5, 2016, (Dkt. Nos. 40–42), and filed an amended opposition
on June 9, 2016, (Dkt. Nos. 44–46). Defendants filed an amended Rule 56.1 Statement on June
20, 2016. (Dkt. No. 47.) Defendants filed their reply and accompanying affidavit on June 24,
2016. (Dkt. Nos. 50–51.)
On June 24, 2016, Defendants filed a Motion To Strike the Affidavit of Gareth Jones and
accompanying papers. (Dkt. Nos. 52–54.) On July 21, 2016, Plaintiff filed an opposition to the
Motion To Strike. (Dkt. No. 57.) Defendants filed a reply on August 8, 2016. (Dkt. No. 58.)
The Court held oral argument on the Motions on January 31, 2017. (Dkt. (minute entry
for Jan. 31, 2017).)
II. Discussion
A. Standard of Review
Summary judgment is appropriate where the movant shows that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir.
2014) (same). “In determining whether summary judgment is appropriate,” a court must
“construe the facts in the light most favorable to the non-moving party and . . . resolve all
ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653
F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted); see also Borough of Upper
Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014)
(same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute
exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also
Aurora Commercial Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at

5

*2 (S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of proof at trial would fall on
the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go
to the trier of fact on an essential element of the nonmovant’s claim,” in which case “the
nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue
of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse
Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alteration and internal quotation marks
omitted). Further, “[t]o survive a [summary judgment] motion . . . , [a nonmovant] need[s] to
create more than a ‘metaphysical’ possibility that his allegations were correct; he need[s] to
‘come forward with specific facts showing that there is a genuine issue for trial,’” Wrobel v.
County of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)), and “cannot rely on the mere
allegations or denials contained in the pleadings,” Walker v. City of New York, No. 11-CV-2941,
2014 WL 1244778, at *5 (S.D.N.Y. Mar. 26, 2014) (internal quotation marks omitted) (citing,
inter alia, Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)).
“On a motion for summary judgment, a fact is material if it might affect the outcome of
the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental
Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). At summary
judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks
omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., MDL No.
1358, No. M21–88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Thus, a court’s
goal should be “to isolate and dispose of factually unsupported claims.” Geneva Pharm. Tech.

6

Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (internal quotation marks omitted)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)).
B. Analysis
“Because a decision on the motion to strike may affect [a] movant’s ability to prevail on
summary judgment, it is appropriate to consider the Motion [T]o Strike prior to the . . . Motion
for Summary Judgment.” Century Pac., Inc. v. Hilton Hotels Corp., 528 F. Supp. 2d 206, 213
(S.D.N.Y. 2007) (alteration and internal quotation marks omitted), aff’d, 354 F. App’x 496 (2d
Cir. 2009). Accordingly, the Court first addresses Defendants’ Motion To Strike and then turns
to the Motion for Summary Judgment.
1. Motion To Strike
As part of his Expert Disclosures, Plaintiff submitted the Expert Report of Gareth Jones
(“Jones”), dated October 18, 2015 (the “Report”). (See Aff. of David L. Posner in Supp. of Mot.
To Strike Ex. A (“Jones Report”) (Dkt. No. 53).) The Report states that Jones has “been asked to
provide a preliminary report of no more than [three] pages, summarizing [his] opinion.” (Id. at
1.) By its own terms, the Report provides a “boiled down . . . analysis” “[i]n order to be brief,”
(id. at 5), and states that Jones “may revise this opinion should further information be made
available,” (id. at 7). The Report is seven single-spaced pages.
On June 5, 2016, more than seven months after the submission of the Report, Plaintiff
submitted the Affidavit of Gareth Jones, dated June 2, 2016 (the “Affidavit”) as an exhibit to
Plaintiff’s opposition to the Motion for Summary Judgment. (See Aff. of Bill Greenberg Ex. O
(“Jones Aff.”).) The Affidavit is 42 double-spaced pages and attaches a curriculum vitae and
materials upon which Jones relied.

7

Defendants move to strike the Affidavit on the basis that Jones’ earlier Report failed to
adhere to the requirements of Federal Rule of Civil Procedure 26, warranting preclusion of
opinions offered by Jones, including the Affidavit. (See Mem. of Law in Supp. of Mot. To Strike
Jones’ Aff. (“Mot. To Strike”) 1–6 (Dkt. No. 54).) Defendants also argue that the Affidavit
should be stricken because it contradicts the Report and is not the proper subject of expert
opinion. (See id. at 6–9.)
Federal Rule of Civil Procedure 26(a)(2) addresses disclosure of expert testimony and
provides:
Unless otherwise stipulated or ordered by the court, this disclosure must be
accompanied by a written report—prepared and signed by the witness—if the
witness is one retained or specially employed to provide expert testimony in the
case or one whose duties as the party’s employee regularly involve giving expert
testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and
the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications
authored in the previous 10 years;
(v) a list of all other cases in which, during the previous [four] years,
the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and
testimony in the case.
Notwithstanding the clear requirements of Rule 26(a)(2), the Report is deficient in a number of
ways. First, the Report is unsigned. Second, the Report fails to include “a list of all publications
authored in the previous 10 years” and “a list of all other cases in which, during the previous
[four] years, the witness testified as an expert at trial or by deposition.” Id. While the Report
does include a list of publications, speaking engagements, and presentations, the Affidavit,
submitted more than seven months later, lists additional publications and speaking engagements,
8

each pre-dating the Report. (Compare Aff. of David L. Posner in Supp. of Mot. To Strike Ex. B,
at 1–4 with Aff. of Bill Greenberg Suppl. Ex. O, at 11–23.) Additionally, the Report fails to list
the cases in which Jones served as an expert witness or the dates of such work. Finally, and most
importantly, the Report does not provide “a complete statement of all opinions [Jones] will
express,” or the “reasons for” such opinions. Fed. R. Civ. P. 26(a)(2). This is evident from the
preface in the Report, which makes clear that it only is a summary of Jones’ opinions.
Rule 37(c) instructs that “[i]f a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Plaintiff has not provided an amended report
to cure the deficiencies in the Report, nor has Plaintiff presented substantial justification for the
failure to disclose or supplement the information absent from the Report. Indeed, Plaintiff’s
opposition to the Motion To Strike does not address Defendants’ arguments as to the missing
signature or amended list of publications. (See generally Mem. of Law in Opp’n of Mot. To
Strike Garth Jones Aff. (“Mot. To Strike Opp’n”) (Dkt. No. 57).) 5
While “preclusion is a harsh remedy that should be imposed only in rare situations,” New
World Solutions, Inc. v. NameMedia Inc., 150 F. Supp. 3d 287, 304 (S.D.N.Y. 2015) (alteration
and internal quotation marks omitted), here, where Plaintiff makes no attempt to amend the
Report, justify or assert the harmlessness of the omissions, or even address Defendants’
arguments regarding the failure to comply with Rule 26, preclusion is appropriate. While the
Court could preclude the Report itself due to its technical deficiencies noted above, the Court

5

Plaintiff’s opposition to Defendants’ Motion To Strike misspells the expert’s name as
“Garth Jones,” rather than “Gareth Jones.” (See Mot. To Strike Opp’n.)
9

finds the Jones Affidavit more troubling in its abuse of Rule 26. 6 The Affidavit contains
substantially more information than the Report. For example, it is only in the Affidavit that
Jones addresses Basler’s failure to report Besze’s suspected intoxication, (see Aff. ¶¶ 23–24, 32),
the application of the “red mist” theory, (see id. ¶¶ 25–26), Sergeant Pearsall’s post-pursuit
memorandum, (see id. ¶ 40), the condition of the inside rear tires of Besze’s truck, (see id. ¶ 41),
and statistics from the U.S. Department of Justice, the Minnesota Department of Public Safety,
and the Bureau of Research and Development of the Pennsylvania State Police, (see id. ¶¶ 46–
47).
The Court therefore finds it is appropriate to preclude the Jones Affidavit as it goes well
beyond the information contained in the Jones Report. See, e.g., Hunt v. CNH Am. LLC, 857 F.
Supp. 2d 320, 339 (W.D.N.Y. 2012) (“To the extent that [the supplemental expert report]
contains new information, that exceeds the scope of [the initial] report and deposition testimony,
as opposed to merely restating [the expert’s] earlier opinions, the [c]ourt agrees that it
violates [Rule] 26(a)(2)(B), and is subject to exclusion pursuant to [Rule] 37(c)(1).”), aff’d, 511
F. App’x 43 (2d Cir. 2013); Innis Arden Golf Club v. Pitney Bowes, Inc., No. 06-CV-1352, 2009
WL 5873112, at *3 (D. Conn. Feb. 23, 2009) (report and recommendation) (“[A party’s] duty to
supplement its initial expert report does not arise when it seeks to bolster its earlier submission,
but rather, arises only if the expert subsequently learns of information that was previously
unknown or unavailable, that renders information previously provided in an initial report
inaccurate or misleading because it was incomplete.” (emphasis omitted) (alterations omitted));
Sandata v. Techs., Inc. v. Infocrossing, Inc., Nos. 05-CV-9546, 06-CV-1896, 2007 WL 4157163,

6

Moreover, Defendants’ Motion To Strike seeks only to preclude the Jones Affidavit and
not the Jones Report.
10

at *4–5 (S.D.N.Y. Nov. 16, 2007) (report and recommendation) (precluding supplemental expert
reports pursuant to Rule 37 because “[i]t should be assumed that at the time an expert issues his
report, that report reflects his full knowledge and complete opinions on the issues for which his
opinion has been sought”); Revlon Consumer Prods. Corp. v. Estee Lauder Cos., No. 00-CV5960, 2003 WL 21751833, at *4 (S.D.N.Y. July 30, 2003) (granting the defendants’ motion to
strike “those portions of [the expert’s affidavit] that go beyond his preliminary report, rebuttal
report and deposition testimony”). 7
Accordingly, Defendants’ Motion To Strike the Affidavit is granted and the Court does
not consider the Affidavit in its decision on the instant Motion for Summary Judgment. 8
2. Motion for Summary Judgment
Defendants assert that in his pursuit of Besze, Basler operated his vehicle according to
“DCSO policy, the law[,] and commonsense,” (Defs.’ Mem. of Law in Supp. of Summ. J.
(“Defs.’ Mem.”) 9 (Dkt. No. 37)), and that “Besze’s reckless and drunk operation of his vehicle
was the sole cause of this traffic accident,” (id. at 10). In response, Plaintiff contends that “[h]e
has put forth sufficient facts for a jury to find that his grave injuries resulted from the tortious
conduct of Basler during the [p]ursuit, which occurred under the supervision of Pearsall.” (Pl.’s
Mem. of Law in Opp’n to Defs.’ Mot. For Summ. J. (“Pl.’s Opp’n”) 6 (Dkt. No. 45).)

7

As the Court finds preclusion is warranted pursuant to Rule 26(a)(2)(B), the Court
declines to address Defendants’ contention that the Report and Affidavit offer contradictory
information. (See Mot. To Strike 6–9.)
8

While not material to the instant Motion To Strike, the Court also notes that Jones fails
to put his opinions in the context of New York law. Jones worked as a police officer in London,
United Kingdom and later became an investigator with the Attorney General in Ontario, Canada.
(Jones Report 1.) While Jones asserts that “[a]pproximately two hundred of the cases [he]
investigated involved incidents where a vehicle driven by an on-duty police officer was involved
in a death or serious injury,” there is no suggestion either of the expert submissions are tethered
to Vehicle and Traffic Law § 1104, let alone that Jones is familiar with the law. (Id.)
11

a. Vehicle and Traffic Law § 1104 and Controlling Case Law
Vehicle and Traffic Law § 1104 provides in relevant part:
(a) The driver of an authorized emergency vehicle, when involved in an
emergency operation, may exercise the privileges set forth in this section,
but subject to the conditions herein stated.
(b) The driver of an authorized emergency vehicle may: . . .
2. Proceed past a steady red signal, a flashing red signal or a stop
sign, but only after slowing down as may be necessary for safe
operation;
3. Exceed the maximum speed limits so long as he does not
endanger life or property . . . .
Section 1104(e) further states that “[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 reckless disregard for
the safety of others.”
In Saarinen v. Kerr, 644 N.E.2d 988 (N.Y. 1994), the seminal case on § 1104, the
plaintiff sued a defendant driver and the Village of Massena when he was seriously injured as a
result of an accident that occurred when the defendant driver hit the plaintiff’s vehicle while the
defendant was being pursued by a police officer. Id. at 989. The officer, a member of the
Village police force, was in his patrol car at 10:00 p.m. when he observed a vehicle that “fishtailed and squealed its tires as it made a turn onto a Village street.” Id. The officer decided to
follow the vehicle and saw it “run a stop sign.” Id. When the officer activated the emergency
lights on his patrol car, the vehicle pulled away and a pursuit ensued. Id. The vehicle turned
onto a public road and “drove into the lane for oncoming traffic, passing a red traffic light.” Id.
As the officer reached for his radio, the defendant’s vehicle collided with that of the plaintiff.
The plaintiff filed an action alleging that the Village “should be held vicariously liable for [the

12

officer’s] lack of due care in pursuing [the defendant’s] vehicle and liable for its own negligence
in failing adequately to train [the officer] or to adopt an adequate pursuit policy.” Id.
“Faced squarely with th[e] question of statutory interpretation [of § 1104] for the first
time,” the New York Court of Appeals held “that a police officer’s conduct in pursuing a
suspected lawbreaker may not form the basis of civil liability to an injured bystander unless the
officer acted in reckless disregard for the safety of others.” Id. at 991 (emphasis added). The
court noted that “[t]his standard demands more than a showing of a lack of due care under the
circumstances” and “requires evidence that the actor has intentionally done 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 has done so with conscious indifference to the
outcome.” Id. (internal quotation marks omitted). The court considered that “the common law
has long recognized that an emergency situation which leaves little or no time for reflection itself
may be a significant circumstance which should enter into the determination of the
reasonableness of the choice of action pursued.” Id. (internal quotation marks omitted). In
commenting on the soundness of the “reckless disregard” standard, the court stated that using the
traditional “due care” standard would
undermine the evident legislative purpose of Vehicle and Traffic Law § 1104, i.e.,
affording operators of emergency vehicles the freedom to perform their duties
unhampered by the normal rules of the road . . . [and] would lead to judicial
“second-guessing” of the many split-second decisions that are made in the field
under highly pressured conditions.
Id. at 992. The court further found that the threat of “incurring civil liability for what amounts to
a mere failure of judgment could deter emergency personnel from acting decisively and taking
calculated risks in order to save life or property or to apprehend miscreants.” Id. Reversing the
Appellate Division, the Court of Appeals ordered that summary judgment be granted to the

13

Village, concluding that “as a matter of law” the pursuing officer did not “overstep the limits of
the statutory qualified privilege.” Id.
b. Plaintiff’s Claims
Plaintiff argues that there exist questions of triable fact including: 1) whether the traffic
and pedestrian volume was too dense at the time to warrant the high speed chase; 2) whether
Basler’s failure to report Besze’s intoxication was reckless; and 3) whether Defendants should
have ceased the pursuit before the crash occurred. (Pl.’s Opp’n 7.) The Court addresses each
issue in turn.
i. Traffic and Pedestrian Volume
The Parties’ main factual dispute concerns the presence of vehicles and pedestrians along
the route of the pursuit. Dutchess County Sheriff’s Office (“DCSO”) policy on “Office Vehicle
Pursuits,” which mimics the factors of § 1104, states:
During an emergency operation, members shall drive with due regard to all
persons. Members shall avoid engaging in, or shall terminate, any emergency
operation when conditions indicate that the safety of the officer and/or the
community is in jeopardy or as instructed by his/her supervisor.
The officer must constantly evaluate the risks involved in initiating or
continuing a pursuit or engaging in an emergency response. Factors to be
considered are:
1.
2.
3.
4.
5.
6.
7.

Reason for the pursuit/seriousness of the incident or charges.
Traffic density/pedestrian volume.
Weather/road conditions.
Speed involved.
Time of day.
Type of area (business vs. residential).
Availability of additional police vehicles to assist at the scene or to
intercept pursued vehicle.
8. Knowledge of the offender’s identity/danger to the community if the
suspect is not immediately apprehended.

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(Aff. of David L. Posner Ex. D (“DCSO Pursuits Policy”) 1 (Dkt No. 34) (emphasis added).)
Defendants repeatedly contend that there was no vehicular or pedestrian traffic at the time of the
pursuit. (See, e.g., Defs.’ 56.1 ¶¶ 26–27, 33–34, 36–38, 40–42, 51, 53–54, 58, 62–64, 70–73,
76–78, 82, 86–88, 91, 94–96.) In response, Plaintiff submits the Affidavit of Joshua Brill
(“Brill”), the passenger in Besze’s vehicle, who affirms that he “saw between [12] and [20] other
cars on the road” during the 10-minute pursuit. (See Aff. of Bill Greenberg Ex. Q (“Brill Aff.”).)
Plaintiff also submits a video from May 10, 2014 depicting the collision, showing
“significant vehicle and pedestrian activity in the area in the minutes preceding the crash.” (Pl.’s
Opp’n 4 (citing Aff. of Bill Greenberg Ex. K (“Collision Video”).) In the two and one-half
minutes leading up to the accident, the video shows “six civilian vehicles, one police vehicle, and
one pedestrian.” (Id.; Collision Video.) 9 The presence of six vehicles over the course of two and
a half minutes simply does not support Plaintiff’s contention that there was “significant vehicle
and pedestrian activity,” (Pl.’s Opp’n 4 (emphasis added)), nor does it speak to the presence of
vehicles or pedestrians throughout the 10-minute pursuit. Plaintiff also asserts that the video
depicts “a constant stream of traffic and activity” in the upper left corner of the video, (id.;
Collision Video), however, the area Plaintiff references is neither the site of the accident, nor on
the route of the pursuit. Further, there are moments where the upper left hand corner of the video
is devoid of any cars—far from the “constant” nature of traffic Plaintiff suggests. (Id.; Collision
Video.)
Plaintiff also submits “video footage evidence showing that two years and two days from
the date of the accident,” 42 cars and three pedestrians were present “on the same exact route at

9

Plaintiff’s opposition later asserts that “[j]ust two minutes and forty seconds before the
collision, six cars and three pedestrians were at the intersection of the crash.” (Pl.’s Opp’n 9.)
The video refutes this statement. (Collision Video.)
15

the same time of day of the police pursuit.” (See, e.g., Pl.’s Resp. 56.1 ¶¶ 26–27, 33–34, 36–38,
40–42, 51, 53–54, 58, 62–64, 70–73, 76–78, 82, 86–88, 91, 94–96 (citing Aff. of Bill Greenberg
Ex. H).) However, it is unclear how the traffic and pedestrian volume two years and two days
after the accident has any bearing on the question of the conditions the night of the pursuit.
Additionally, Plaintiff cites to census bureau statistics regarding the population density of
the City of Poughkeepsie, (see Pl.’s Opp’n 4 (“The City of Poughkeepsie is 5.14 square miles
and has a population of 31,000 people. It has an approximate population density of 6,000
persons per square mile.”)), and the fact that “[o]n the night of the collision . . . , a rock concert
occurred . . . 2.5 blocks away from the crash . . . [in which] [t]wo hundred people were in
attendance,” (see id.). Plaintiff provides no indication of how this information is relevant to the
question of vehicle and pedestrian traffic. For instance, Plaintiff does not offer information on
how many residents lived along the pursuit route or near the scene of the collision or whether the
concert concluded shortly before the time of the accident.
Accepting, as the Court must at this stage, that Plaintiff’s account of the traffic volume is
accurate and between 12 and 20 vehicles were present on the pursuit route on May 10, 2014 at
12:30 a.m., that would mean that on average, during the 10-minute pursuit, Basler encountered
only two vehicles per minute. Not only does this contradict Plaintiff’s account of “significant
vehicular and pedestrian activity,” (id.), but courts have found summary judgment appropriate in
situations with vehicular traffic, see, e.g., Gonzalez v. Zavala, 931 N.Y.S.2d 396, 397 (App. Div.
2011) (reversing a denial of summary judgment where the officer pursued a motorist who
“reached speeds of 70 miles per hour, failed to stop for [nine] red lights, and swerved in and out
of traffic” (emphasis added)); Mulligan v. City of New York, 664 N.Y.S.2d 484, 485 (App. Div.
1997) (affirming summary judgment finding officer was not reckless despite, among other

16

factors, the fact that “other vehicles on the road” had to pull over); see also Jones v. Albany Cty.
Sheriff’s Dep’t, 999 N.Y.S.2d 260, 263 (App. Div. 2014) (affirming an order of summary
judgment where the plaintiff alleged an officer made a U-turn into “oncoming traffic” in an
attempt to assist at the scene of an accident).
More importantly, in Saarinen, the Court of Appeals held that although “the possibility of
vehicular traffic in the vicinity undoubtedly augmented the risk involved in the course of conduct
[the officer] undertook, . . . the risk was one that [the officer] was entitled to take in the interest
of stopping a motorist whose conduct on the road presented a clear and immediate threat to
public safety.” Saarinen, 644 N.E.2d at 993. The motorist’s actions in Saarinen were akin to
Besze’s—intoxication, fish-tailing, disregarding traffic signs—such that termination was worse
than pursuit. Id. at 992. Additionally, the “wet condition of the roads” in Saarinen, a factor not
present here, makes the pursuit more dangerous in Saarinen than the case at hand. Id. at 993.
Accordingly, the Court finds that the amount of vehicle and pedestrian traffic does not present an
issue of material fact that precludes summary judgment.
ii. Failure to Report Besze’s Intoxication
Plaintiff contends that there is a “triable issue of fact as to whether it was reckless for
Basler to fail to report to [d]ispatch that Besze appeared to be intoxicated” and that “[i]t will be
important for the jury to consider [this] fact.” (Pl.’s Opp’n 10.) Plaintiff separately seems to
contend that the very belief that Besze was intoxicated should have been reason enough for
Basler to terminate the pursuit of his own accord. Both arguments are unavailing.
Plaintiff cites no policy—DCSO or otherwise—that requires the pursuing officer to
report a driver’s possible intoxication. Nor does Plaintiff point to any case law that considers the
dispatch of information (or lack thereof) about the suspected intoxication of the driver of a

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pursued vehicle. Plaintiff’s only support for this proposition is the now-stricken Jones Affidavit
that asserts:
Deputy Basler acknowledged that he suspected the operator of the pursu[ed] vehicle
to be under the influence of alcohol, though he did not advise anyone of this during
the [10] minutes or so he states the pursuit took. This in and of itself should have
been a red flag militating against the high-speed, lengthy pursuit that followed.
(Jones Aff. ¶ 23; see also id. ¶ 32 (“[Basler] did not mention [his suspicion Besze was
intoxicated] in any radio transmission during the pursuit.”).) Plaintiff’s emphasis on the fact that
“Pearsall did not have the requisite information properly to manage the police response” is
entirely unsupported. (Pl.’s Opp’n 10.) The DCSO policy states that a pursuit shall be
terminated “[w]hen so ordered by [a] supervisor assigned to the pursuit,” (DCSO Pursuits Policy
3), but nowhere in the policy does it require the pursuing officer to supply every piece of
information as it is developed during a chase, such as the supposition that the driver is
intoxicated, (see id. at 2 (noting that “[w]hen a . . . pursuit is initiated, the pursuing officer shall
immediately report . . . [the] “[r]eason for pursuit,” “[r]oute and direction of travel,” “description
of pursued vehicle,” “[o]ccupant(s) description,” “weapons involved, if any,” and “[d]irection
and areas being approached”)).
In support of Plaintiff’s contention that there exists a triable issue of fact as to whether
Basler’s failure to cease the pursuit “given that Besze was drunk” was reckless, Plaintiff offers
the opinion of Jones providing:
It is good practice in police pursuits that where it is suspected that the operator of
the motor vehicle is impaired, either from the ingestion of alcohol or other
substances, the pursuit of that vehicle, particularly a high-speed pursuit, increases
the danger created by a pursuit. 10 At the point that there is suspicion that the
pursued vehicle is being driven by an impaired driver, a pursuit should generally
be terminated, unless the magnitude and threat to public safety of allowing the
10

The Court notes that here, Jones does not actually opine what “it is good practice” to
do. (Jones Aff. ¶ 24.)
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suspect to escape outweighs the risk to public safety in allowing [the] pursuit to
continue. A relatively minor offen[s]e does not justify a [10]-minute high-speed
pursuit into a built up area, particularly where it is suspected that the operator of
the pursued vehicle may be impaired.
(Jones Aff. ¶ 24 (footnote added).) Setting aside the admissibility of the Affidavit, the assertion
that intoxication “increases the danger created by a pursuit,” (id.), does not speak to whether this
condition presents “an extraordinary danger to the officer or the public” justifying the need to
terminate the pursuit under the DCSO policy, (DCSO Pursuits Policy 3 (emphasis added)). In
fact, the case law is to the contrary. Borrowing from one decision, “[w]hile the intoxication of
[Besze] increased the hazards of the pursuit, it also increased the need for his immediate
apprehension.” Jessop v. City of Niagara Falls, 669 N.Y.S.2d 110, 112 (App. Div. 1998); see
also Saarinen, 644 N.E.2d at 992 (noting how the pursued driver’s conduct suggested he was
“intoxicated,” further justifying the pursuit). The fact remains that Pearsall, Basler’s supervisor
did not instruct Basler to terminate the pursuit. Thus, the Court finds that Basler’s failure to
report Besze’s apparent intoxication and failure to terminate the pursuit on such grounds was not
reckless, and therefore does not create a triable issue of fact.
iii. Failure to Terminate the Pursuit
Plaintiff asserts that there “exists a triable issue of fact as to whether a 10-minute chase
was reckless given that Besze was drunk, speeding, disregarding stop signs, and disregarding red
lights.” (Pl.’s Opp’n 10.) Plaintiff cites only to the Jones Affidavit to support the contention that
“it was predictable that the chase would end up in a collision.” (Id. (citing Jones Aff. ¶ 20).)
According to the DCSO Pursuits Policy, a pursuit shall be terminated under the following
conditions:
1. When circumstances develop which present extraordinary danger to the
officer or the public (pursuing officer or supervisory discretion).

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2. Under those circumstances wherein the offender can be identified and an
arrest made at a later time without risk of creating an unreasonable danger
to the public.
3. When so ordered by supervisor assigned to the pursuit.
4. The pursued vehicle’s location is no longer known by pursuing officers.
5. Radio contact is lost.
(DCSO Pursuits Policy 3.) Plaintiff does not dispute Defendants’ contention that “[r]adio
contract was not lost; Besze’s location was never unknown; [and] Pearsall did not direct Basler
to stop.” (Defs.’ Mem. 9.) The Parties dispute the application of the second condition—whether
“the offender can be identified and an arrest made at a later time without risk of creating an
unreasonable danger to the public.” (DCSO Pursuits Policy 3.) Defendants argue that because
Besze’s California license plate “did not match the vehicle’s registration, there was no
opportunity to identify the offender and make the arrest later.” (Defs.’ Mem. 9.) Plaintiff asserts
that proper and timely identification of the vehicle, even with out-of-state plates “would be [a]
. . . basis to terminate the dangerous pursuit.” (Pl.’s Opp’n 3.) Plaintiff’s only support for this
statement is the Jones Affidavit, which states that “knowledge of a license plate number, albeit
from out of [s]tate . . . may potentially lead to the identity of the operator and his arrest and
prosecution without any risk to the public.” (Jones Aff. ¶ 24.) For the reasons stated supra, the
Court declines to consider the Affidavit. But even if it did, it would offer little help to Plaintiff,
as it involves pure speculation. More sensical is the notion that from Basler’s perspective, it was
far from clear that he ever would have been able to identify the driver of the vehicle where the
license plate did not match the vehicle’s registration.
As to the first condition under DCSO Policy, Plaintiff does not directly identify
circumstances which “present[ed] extraordinary danger to the officer or the public,” (DCSO
Pursuits Policy 3), but seems to suggest that Besze’s suspected intoxication and speed of 72 mph,
which Basler failed to report to Pearsall, were circumstances that would have warranted
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termination, (see Pl.’s Opp’n 10). Again, Plaintiff’s only proffered support is the Jones
Affidavit.
While the Court acknowledges that the facts of the chase undeniably presented some
danger to Basler, Besze, his passenger, and fellow drivers and pedestrians, Basler’s decision to
continue the pursuit was not only reasonable, but “[h]aving observed erratic and dangerous
driving on the part of [Besze], Officer [Basler] was duty-bound to investigate, using all
reasonable means, including pursuit, to stop the lawless vehicle’s forward progress.” Saarinen,
644 N.E.2d at 992 (emphasis added); see also Martin v. Miller, 680 N.Y.S.2d 300, 301 (App.
Div. 1998) (granting summary judgment in part because the pursuing officer was “duty bound to
investigate” a reckless driver); Jessop, 669 N.Y.S.2d at 112 (reversing denial of summary
judgment, holding that the intoxication of the pursued driver “increased the need for his
immediate apprehension”).
Finally, as to Plaintiff’s contention that the length of the pursuit was itself inherently
dangerous, Plaintiff offers no case law—and the Court is aware of none—that suggests there is a
temporal limit at which point a pursuit must be halted. Indeed, no court has explicitly deemed
length of pursuit a relevant factor in determining whether a police chase was reckless under
§ 1104. See Greenawalt v. Village of Cambridge, 888 N.Y.S.2d 295, 296–97 (App. Div. 2009)
(affirming a grant of summary judgment that the defendant police officers’ conduct did not
exhibit “reckless disregard for the safety of others” and was not a proximate cause of the
plaintiff’s injuries during an approximately 10-minute chase where the vehicles “reached speeds
nearing 90 miles per hour” (internal quotation marks omitted)); King v. Village of Cobleskill, 654
N.Y.S.2d 439, 440 (App. Div. 1997) (affirming a grant of summary judgment that an officer’s

21

conduct did not rise to the level of “reckless disregard for the safety of others” during a fivemile, high-speed pursuit in the rain, on a road with a “sharp curve” (emphasis omitted)).
Plaintiff asserts that in addition to the issues discussed above, “numerous issues of
disputed fact exist . . . regarding the ‘reason for the pursuit at the outset/seriousness of the
incident or charges’; the ‘traffic/density pedestrian volume’; and ‘the knowledge of the
offender’s identity/danger to the community if the suspect is not immediately apprehended.’”
(Pl.’s Opp’n 11.) Plaintiff does not indicate what these disputed factual issues are, but contends
in conclusory fashion that “[i]t is the province of the jury, not this Court, to make these factual
findings.” (Id.) Here, the material facts are not in dispute, or the Court has assumed Plaintiff’s
version of the facts. 11 And, in light of these facts, it is within the Court’s province to determine,
as it does, that as a matter of law Defendants are entitled to summary judgment because of the
lack of evidence that Basler intentionally committed 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.” Saarinen, 644 N.E.2d at
991 (internal quotation marks omitted). Indeed, numerous courts faced with cases involving
police pursuits have found summary judgment appropriate in similar circumstances. See, e.g.,
Nurse v. City of New York, 867 N.Y.S.2d 486, 488 (App. Div. 2008) (reversing a denial of
summary judgment and finding the defendants-appellants “established their prima facie
entitlement to judgment as a matter of law by demonstrating that the police officers involved in
the pursuit . . . did not act with reckless disregard for the safety of others” and that “the
proximate cause of the accident was the independent recklessness of the driver . . . and not the

11

For example, the Court assumes Plaintiff’s version about the volume of traffic that
night, but Plaintiff does not offer an alternative version of the offender’s danger to the
community, other than that presented by Defendants.
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police officers’ conduct in initiating the pursuit”); Pacelli v. City of Syracuse, 760 N.Y.S.2d 790,
791 (App. Div. 2003) (reversing an order denying the defendant’s motion for summary judgment
and finding that the “plaintiff failed to raise an issue of fact whether the police disregarded an
obvious risk that was so great as to make it highly probable that harm would follow and that they
did so with conscious indifference to the outcome” (internal quotation marks omitted)); Martin,
680 N.Y.S.2d at 302 (reversing an order denying summary judgment finding that the city and
police officer were not liable for injuries sustained by an innocent bystander during a police
pursuit); Mullane v. City of Amsterdam, 622 N.Y.S.2d 346, 347 (App. Div. 1995) (affirming a
grant of summary judgment for the defendants and finding “the proximate cause of the accident
was [the driver’s] erratic and improper operation of his vehicle, not the manner in which the
police officer conducted the pursuit”).
In support of his claims that Basler and Pearsall acted recklessly under § 1104 and that
consequently, the Court should deny summary judgment, Plaintiff cites a single case, Greges v.
City of White Plains, 200 F. Supp. 2d 302 (S.D.N.Y. 2002). Plaintiff contends Greges is
“instructive,” but even the three sentences Plaintiff cites make the facts readily distinguishable
from those in the case at hand. (Pl.’s Opp’n 11.) In Greges, the officers claimed they never saw
the suspect vehicle while in pursuit and were chasing the vehicle at approximately 90 mph on the
dangerous curves of the Bronx River Parkway during heavy rain. See 200 F. Supp. at 309.
Further, the suspect’s car was equipped with LoJack, so that it could be located at a later time.
Id. None of these conditions is present in the instant case.
Ultimately, Plaintiff’s arguments render § 1104 toothless. It is unclear under what
circumstances an officer could pursue an intoxicated driver late in the evening in a
suburban/rural setting on dry roads without violating DCSO policy and New York State law or

23

exposing themselves to tort liability. As the Court of Appeals has emphasized, it is dangerous
for courts, in hindsight, to second-guess the "decisions that are made in the field under highly
pressured conditions" and impose liability upon "emergency personnel [who] act[] decisively
and tak[e] calculated risks in order to save life or property or to apprehend miscreants."

Saarinen, 644 N.E.2d at 992. Consistent with this directive, and based on the record, the Court
will not second-guess the officers here.
III. Conclusion
For the foregoing reasons, the Court grants Defendants' Motion To Strike and Motion for
Summary Judgment. The Clerk of Court is respectfully directed to terminate the pending
Motions, (Dkt. Nos. 32, 52), enter judgment for Defendants, and close this case.
SO ORDERED .
Dated:

!t-,

March
20 17
White Plains, New York

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