Preview
FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020
NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024
STATE OF NEW YORK
SUPREME COURT: COUNTY OF ERIE
CHRISTOPHER F. THURSTON,
vs. Index No. 802615/2020
TIMOTHY B. HOWARD, in his official
Capacity as Sheriff of Erie County
OFFICE OF THE ERIE COUNTY SHERIFF
DEPUTY KENT,
Defendants.
MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS'
POST-TRIAL MOTION
Respectfully submitted,
LIPSITZ GREEN SCIME CAMBRIA LLP
Attorneys for Plaintiff
42 Delaware Avenue, Suite 120
Buffalo, New York 14202
(716) 849-1333
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PRELIMINARY STATEMENT
Plaintiff, Christopher F. Thurston, submits this Memorandum of Law in
opposition to Defendants' motion pursuant to CPLR 4404 (a), by which they seek to
have the jury's verdict set aside and secure a new trial. For the reasons set forth
below, Defendants' motion should be denied in its entirety.
STATEMENT OF FACTS
The relevant facts are recited in the accompanying Affirmation of James T.
Scime, Esq., and will not be repeated for purposes of brevity.
ARGUMENT
POINT I
THE COURT PROPERLY HELD THAT
DEFENDANTS COULD NOT INVOKE VEHICLE
AND TRAFFIC LAW § 1104 GIVEN THE
PROCEDURAL HISTORY AND FACTS OF THIS
CASE.
As demonstrated below, the Court properly denied Defendants' request to
charge the jury with the standard of care set forth in Vehicle and Traffic Law § 1104
("VTL 1104") for two independently sustainable reasons: First, the Court, exercising
its discretion under CPLR 3126, precluded Defendants' reliance upon VTL 1104
because Defendants had willfully delayed producing discovery requested by Plaintiff
pertinent to the issue of liability, even though it was ordered by a Judicial
Subpoena. Second, the Court held that Defendants could not invoke VTL 1104
because they had failed to raise it as an affirmative defense.
Furthermore, as Plaintiff demonstrated in his response to Defendants' trial
memorandum (NYSCEF Doc. No. 36, pp. 7-10), VTL 1104 is any event inapplicable
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as a matter of law because Deputy Kent was not engaged in conduct that — although
generally prohibited under the Rules of the Road — is privileged under the statute
when performed by a police officer who is engaged in an emergency operation.
A. The Court Properly Precluded Defendants' Reliance
Upon VTL 1104 Pursuant to CPLR 3126.
The Court articulated its ruling by referencing its discretionary powers under
CPLR 3126 and the Court of Appeals' decision in Oak Beach Inn Corp. v. Babylon
Beacon, 62 N.Y.2d 158 (1984), and by distinguishing Wilson v. State, 269 A.D.2d 854
(4th Dep't 2000). See Motion Transcript, Nov. 30, 2023, Exhibit C to Persico
Affirmation, pp. 22-26.
Under CPLR 3126, the penalties that may be imposed for a party's refusal to
comply with an order, or for willfully failing to disclose information which the court
finds ought to have been disclosed, include:
2. an order prohibiting the disobedient party from
supporting or opposing designated claims or defenses, from
producing in evidence designated things or items of
testimony, or from introducing any evidence of the
physical, mental or blood condition sought to be
determined, or from using certain witnesses; or
3. an order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or any part thereof, or rendering a
judgment by default against the disobedient party.
CPLR 3126.
The Court of Appeals held in Oak Beach Inn Corp. that the general rule is
that the demanding party should not be granted more relief for nondisclosure than
is reasonably necessary to protect legitimate interests. 62 N.Y.2d at 166-67.
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As this Court is aware, prior to the trial of December 11, 2023, trial was
originally scheduled to go forward earlier in the year, but was adjourned to permit
additional discovery by both parties, which included Deputy Kent's personnel file
and the Sheriffs Policies and Procedures. Two Subpoenas Duces Tecum were signed
on March 7, 2023, ordering the production of Deputy Gregory Robert Kent's
employment file and a complete copy of the Sheriffs Policies and Procedures
relative to, among other things, the use of overhead lights and sirens and pursuit of
vehicles for traffic violations. NYSCEF Doc. Nos. 50 and 51.
As set forth in the record, Plaintiff followed up on his demand for responsive
documents several times over the approximately eight-month period following the
subpoenas' issuance. Ultimately, Plaintiff filed a motion to strike Defendants'
Answer (NYSCEF Docs. 83-93). The Court, in its discretion, precluded Defendants
from invoking VTL 1104 rather than imposing the more drastic remedy of striking
Defendants' Answer, as provided for under CPLR 3126 and Oak Beach Inn Corp.
Accordingly, Defendants' motion should be denied because the Court, in the
sound exercise of its discretion, precluded Defendants' reliance upon VTL 1104 as a
penalty for Defendants' willful failure to comply with multiple court orders
requiring the production of relevant, pertinent discovery and cross-examination
materials related to the Deputy's acts at the time in question, i.e., the very conduct
that served as a basis for Defendants' invocation of the statute.
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B. Defendants Both Failed to Plead VTL 1104 as an Affirmative
Defense and Affirmatively Conceded Their Lack of a Defense to
the Deputy's Conduct.
As this Court is aware, Defendants — throughout the litigation process and up
to the brink of trial — indicated "they did not have a defense; the officer turned in
front of a bus." Motion Transcripts, Exhibit C to Persico Aff., pp. 4-9. During all
conferences with the Court in preparation for trial, counsel for the Defendants
maintained they did not have a defense for the deputy's conduct. Then, at the final
charging conference, Defendants requested that the standard of care set forth in
VTL 1104 be charged. This was a surprise to both Plaintiff and the Court, based not
only on defense counsel's prior representations but also on Defendants' failure to
plead VTL 1104 in their answer and amplify that defense in their bill of particulars.
After Defendants belatedly raised VTL 1104 as a defense, the parties briefed
their respective positions as to whether the statute needed to be pled as an
affirmative defense (NYSCEF Doc. Nos. 34-47). Defendants contended that it need
not be pleaded. Plaintiff contended that it -did. In addition, Plaintiff at all times
maintained this was a simple negligence case, not a case implicating the reckless-
disregard standard, and that Defendants' liability had to be determined under the
common-law standard of care applicable to all motorists (NYSCEF Doc. Nos. 36-44).
Under CPLR 3018 (b), which governs the interposition of affirmative
defenses, "a party shall plead all matters which if not pleaded would be likely to
take the adverse party by surprise or would raise issues of fact not appearing on the
face of a prior pleading . . . culpable conduct claimed in diminution of damages . . ."
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As plaintiff argued (NYSCEF Doc. No. 36) and the Court found, VTL 1104 had
to be pleaded as an affirmative defense in this action. In so holding, the Court
distinguished Wilson v. State of New York (Motion Transcript, Nov. 30, 2023, Exhibit
C to Persico Aff., pp. 24-26). Plaintiff further notes in this regard that Wilson involved
the operation of a snowplow, thus implicating VTL 1103 and not VLT 1104. The
Fourth Department has never held that VTL 1104 need not be pled as an affirmative
defense. To the contrary, in Spence v. Kitchens, 210 A.D.3d 1416 (4th Dep't 2022), the
court held:
As an initial matter, plaintiffs contention that defendants
are not entitled to assert the affirmative defense of
emergency operation under Vehicle and Traffic Law § 1104
because it was not pleaded in the answers is raised for the
first time on appeal and, therefore, that contention is not
properly before us.
210 A.D.3d at 1417 (citations omitted) (emphasis supplied).
Thus, the Fourth Department in Spence implicitly recognized that VTL 1104
must be raised as an affirmative defense, while holding that plaintiff had failed to
preserve the issue in the trial court. Christopher Thurston, by contrast, duly raised
and preserved the issue in this Court.
Accordingly, Defendants' post-trial motion should be denied insofar as it
asserts that the Court improperly precluded Defendants from relying on VTL 1104
because Defendants failed to plead the statute as an affirmative defense and, when
Defendants belatedly raised the issue at the final charging conference, Plaintiff was
unduly surprised and prejudiced.
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C. Deputy Kent Was Not Engaged in Conduct Privileged Under
VTL 1104 at the Time of the Collision.
In any event, as Plaintiff initially demonstrated in his response to
Defendants' trial memorandum of law (NYSCEF Doc. No. 36), Deputy Kent
was not engaged in conduct privileged under VTL 1104 when he collided with
the NFTA bus on October 16, 2019, while attempting to make a U-turn on
Grand Island Boulevard.
In relevant part, Vehicle and Traffic Law § 1104 provides:
(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:
1. Stop, stand or park irrespective of the provisions of
this title;
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;
4. Disregard regulations governing directions of
movement or turning in specified directions.
(c) Except for an authorized emergency vehicle operated as
a police vehicle or bicycle, the exemptions herein granted
to an authorized emergency vehicle shall apply only when
audible signals are sounded from any said vehicle while in
motion by bell, horn, siren, electronic device or exhaust
whistle as may be reasonably necessary, and when the
vehicle is equipped with at least one lighted lamp so that
from any direction, under normal atmospheric conditions
from a distance of five hundred feet from such vehicle, at
least one red light will be displayed and visible.
....
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(e) The 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 Kabir v. County of Monroe, 16 N.Y.3d 217 (2011), aff'g 68 A.D.3d 1628 (4th
Dep't 2009), the Court of Appeals held that "Vehicle and Traffic Law § 1104 (e) is
limited to accidents or incidents caused by exercise of a privilege identified in
Vehicle and Traffic Law § 1104 (b)." 16 N.Y.3d at 226. Accordingly, "if the conduct
causing the accident resulting in injuries and damages is not privileged under
Vehicle and Traffic Law § 1104 (b), the standard of care for determining civil
liability is ordinary negligence." Id. at 230-231.
In applying that principle, the Court in Kabir upheld a judgment entered in
favor of a motorist who was rear-ended by a sheriffs deputy who was responding to
an emergency call. 16 N.Y.3d at 220-222. At the time of the incident, the deputy was
traveling southbound, below the speed limit, on a highway with two through lanes
and a left turn lane. Id. at 220-221. The deputy looked down at his terminal monitor
for two to three seconds and, when he looked up, saw that "traffic had slowed." Id.
at 221. Although he braked, he struck the rear end of the vehicle driven by plaintiff,
who was proceeding through a congested intersection. Id. Thus, at the time of the
collision, the deputy was not exercising any of the privileged conduct authorized by
Vehicle and Traffic Law § 1104 (b), i.e., he was not stopping, standing, or parking in
a place where it is prohibited; traveling through a red light or stop sign; speeding;
or disregarding regulations governing turns or directions of movement. Accordingly,
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the deputy was subject to the ordinary negligence standard of care applicable to all
motorists, 16 N.Y.3d at 230-231, and was therefore liable as a matter of law because
he failed to establish a nonnegligent explanation for the accident. Id. at 222.
In accordance with Kabir's construction of Vehicle and Traffic Law § 1104 (b),
New York's trial and appellate courts have consistently held that the statute is
inapplicable where the operator of an authorized emergency vehicle was not
engaged in one of the four enumerated categories of privileged conduct. Thus, in
Katanov v. County of Nassau, 91 A.D.3d 723 (2d Dep't 2012), the court held that a
police officer was subject to a negligence standard of care rather than section 1104's
reckless-disregard standard when the officer struck plaintiff as the officer was
pulling into a parking space while responding to a 911 call. Id. at 724-725. Citing
Kabir, the court held that "the injury-causing conduct of the police officer, i.e.,
making a turn into a parking space located within the parking lot while traveling at
approximately two miles per hour, did not fall within any of the categories of
privileged conduct set forth in Vehicle and Traffic Law § 1104 (b)." Id. at 725.
In Baracel v. City of Yonkers, 52 Misc.3d 544 (Sup. Ct. Westchester County
2016), similarly, the court held that section 1104 was inapplicable where a police
officer operating an emergency vehicle struck the plaintiff while the officer was
pulling into a driveway. Id. at 545, 547-549. The court rejected the defendants'
contention that the officer was engaged in privileged conduct under the statute
because he turned into the driveway without signaling and was speeding, i.e.,
traveling at 5 to 7 m.p.h. when the statutory limit is 5 m.p.h. Id. at 548-549 & n. 1.
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"[Flailing to use a turn signal or driving into a driveway is not conduct delineated in
Vehicle and Traffic Law § 1104 (b)," the court held, and the officer's de minimus
speeding had no nexus to the incident, which resulted from the officer's failure to
see plaintiff. Id. at 549.
Also instructive here is Holliday v. City of New Rochelle, 2019 WL 11025571
(Sup. Ct. Westchester County Sept. 11, 2019), aff'd, 195 A.D.3d 1002 (2d Dep't
2021), in which Supreme Court held that where a police officer who was facing the
wrong way on a one-way street pulled into a semi-circular driveway to turn around,
and struck a pole in the process, the officer's "actions do not fall within the qualified
immunity protections of VTL 1104 (b) (4)." 2019 WL 11025571, *1-3. "The negligent
conduct," the court explained, consisted of "the failure to see the pole which was
there to be seen," which "was not conduct specified in VTL 1104 (b) as exempt from
the rules of the road." Id., *3. The Appellate Division affirmed, holding that the
officer's "injury-causing conduct did not fall within any of the categories of
privileged conduct set forth in Vehicle and Traffic Law § 1104 (b)." 195 A.D.3d at
1002 (citations omitted).
Like the law enforcement personnel in Kabir, Katanov, Baracel, and
Holliday, Deputy Kent was not engaged in conduct privileged under Vehicle and
Traffic Law § 1104 (b) at the time he collided with the NFTA bus, and he was thus
subject to the common-law negligence standard of care rather than the reckless-
disregard standard. As established by his testimony, immediately prior to the
collision, the deputy was northbound on Grand Island Boulevard, when he observed
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a vehicle traveling in the opposite direction that appeared to have its taillights out
(Trial Transcript, Exhibit D to Persico Aff., pp. 87, 107, 115). From his position
along the right-hand curb, Deputy Kent attempted to make a U-turn (id. at pp. 100,
115). Upon doing so, Deputy Kent drove his SUV into the path of an NFTA bus in
the oncoming lane of travel without looking for oncoming traffic (id. at pp. 100, 115,
112).
At the time of the incident, Deputy Kent was not engaged in conduct
privileged under Vehicle and Traffic Law § 1104 as he was not stopping, standing,
or parking in a place where it is prohibited; traveling through a red light or stop
sign; speeding; or disregarding regulations governing turns or directions of
movement. As demonstrated below, U-turns are not prohibited on the highway
where Deputy Kent collided with the bus in which Plaintiff was traveling, and any
motorist could have legally made a U-turn at the same location (provided that,
unlike Deputy Kent, he or she exercised due care in doing so).
Section 158-a of Vehicle and Traffic Law defines a "U turn" as "[a]ny turn
executed so as to proceed in the opposite direction." Such turns are not universally
prohibited in New York State. See Cunningham, Practice Commentaries,
McKinney's Cons. Laws of N.Y., Vehicle and Traffic Law § 1160 ("Contrary to the
rules of some other states, U-turns are not per se illegal in New York."). Rather,
they are proscribed only under certain expressly defined circumstances. Thus,
Vehicle and Traffic Law § 1161 provides that no motor vehicle may make a U-turn
on a curve, near the crest of hill, or in a school zone, and that no stretch limousine
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may make a U-turn on any public highway. Further, Vehicle and Traffic Law § 1160
(e) provides that, when a U-turn is made at an intersection, it must "be made from
and to that portion of the highway nearest the marked center line."
In addition, U-turns are proscribed by regulations applicable only to certain
designated highways. Thus, 17 NYCRR 182.40 prohibits U-turns on the State's
parkways unless made by authorized emergency vehicles or other authorized
vehicles. Similarly, 21 NYCRR 103.5 prohibits U-turns on the New York State
Thruway unless made by authorized individuals.
In accordance with New York's statutory framework permitting U-turns on
the State's highways unless expressly prohibited, the courts have rejected claims
that the making of a U-turn is per se illegal. Thus, in People v. Quiros, 66 Misc.3d
142(A) (App. Term 2020), the court — in reversing the defendant's conviction for
violating Vehicle and Traffic Law § 1110 (a) by crossing double solid yellow lines
while making a U-turn — held that "[w]hile U-turns may be prohibited for other
purposes (see e.g. Vehicle and Traffic Law §§ 1160 [e]; 1161), or where a sign
specifically prohibits such a maneuver, there is no provision contained within the
Vehicle and Traffic Law which prohibits the crossing of solid double yellow lines to
make a U-turn." Id., *1. Indeed, the court noted, the Driver's Manual published by
the New York State Department of Motor Vehicles expressly states that a motorist
may cross double yellow lines "to do a U-turn." Id. n.1. See also People v. Palermo,
33 Misc.3d 1205(A), *3 (Geneva City Court Sept. 28, 2009) (in granting defendant's
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suppression motion in a prosecution arising out of a motor vehicle stop, the court
held that "[c]learly there is nothing illegal in the act of making a U-turn per se").
In the present case, Deputy Kent did not make a U-turn on a hill or curve or
at an intersection, and he was not traveling on a New York State parkway or the
New York State Thruway or in a school zone. Nor was Deputy Kent driving a
stretch limousine. Thus, the collision was not caused by Deputy Kent's exercise of a
privilege identified in Vehicle and Traffic Law § 1104 (b), including in particular the
privilege excusing him from following "regulations governing directions of
movement or turning in specified directions." Accordingly, "the standard of care for
determining civil liability is ordinary negligence." Kabir, at 230-231.
Finally, and independent of the foregoing analysis, Deputy Kent's
failure to see that which was there to be seen was not privileged under VTL
1104, and renders the statute inapplicable. In Starkman v. City of Long Beach,
106 A.D.3d 1076 (2d Dep't 2013), the Second Department held that, under
Kabir v. County of Monroe, "Vehicle and Traffic Law § 1104 does not apply to
. . . conduct, such as where an accident occurs because the police officer did not
see that which through the proper use of his or senses he or she should have
seen." Id. at 1078 (citation omitted). Applying that principle, the court in
Starkman held:
In the instant case, [the defendant officer] acknowledged
that he did not see the plaintiff until after he struck him
with his car. His conduct — the failure to see that which was
there to be seen — was not conduct specified in Vehicle and
Traffic Law § 1104 (b) as exempt from the rules of the road.
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Accordingly, his conduct was governed by the principles of
ordinary negligence.
Id.
Here, as in Starkman, the injury-producing incident was caused by Deputy
Kent's failure to see that which he should have seen, not by his engagement in
conduct privileged under Vehicle and Traffic Law § 1104 (b). Deputy Kent testified
that he did not see a bus at any point prior to beginning his turn. Rather, he
attempted to claim that a vehicle was blocking his view of the bus. Following cross-
examination, Deputy Kent essentially recanted this fabricated claim.
Thus, the collision occurred because Deputy Kent failed to see what was there
to be seen before initiating the U-turn. That conduct is not privileged under Vehicle
and Traffic Law § 1104 and is therefore "governed by principles of ordinary
negligence" rather than the statute's reckless-disregard standard. Starkman, 106
A.D.3d at 1078. Accordingly, the facts and circumstances surrounding this case do
not warrant the application of the standard of care set forth in § 1104.
POINT II
THE COURT PROPERLY GRANTED PLAINTIFF'S
MOTION FOR A DIRECTED VERDICT ON THE
ISSUE OF DEPUTY KENT'S NEGLIGENCE.
Even when considered in a light most favorable to Defendants, the testimony
and evidence established that Deputy Kent was negligent for making an improper U-
turn into the path of an oncoming bus, which was traveling with the right-of-way,
without even looking to see if there was any oncoming traffic. Thus, there was no
rational process by which the jury could have found in Defendants' favor on the issue
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of negligence. Accordingly, the Court properly granted Plaintiffs motion for a directed
verdict on that issue.
At trial, Deputy Kent's testimony and the video evidence established that,
prior to initiating a U-turn, Deputy Kent, who was in the northbound lane on Grand
Island Boulevard, failed to see the NFTA bus in the oncoming lane of travel and
turned directly into the path of the bus, which had the right-of-way (Trial
Transcript, Exhibit D to Persico Aff., pp. 100, 103, 112, 136-137).
Indeed, Deputy Kent admitted that he did not see the bus because he was not
looking for oncoming traffic (id., p. 112). Moreover, Deputy Kent did not, at any
point prior to the impact, turn on his SUV's sirens or overhead lights to warn the
public of an impending traffic stop (id., p. 103; see also NFTA Video, Exhibit 1 in
evidence, attached hereto as Exhibit A).
Furthermore, contrary to Defendants' position, the testimony and evidence
established that the vehicle Deputy Kent intended to pursue was not traveling
approximately "four to six car lengths" in front of the bus, and thus allegedly
blocking the deputy's view of the bus as it proceeded south on Grand Island
Boulevard (Trial Transcript, Exhibit D to Persico Aff., pp. 112-114; Video, Exhibit A
hereto). Rather, Deputy Kent admitted that the offending vehicle had already
passed through the intersection of Grand Island Boulevard and Baseline Road,
located to the south of the collision site, because it had a green signal (Trial
Transcript, Exhibit D to Persico Aff., pp. 90, 98-99). The deputy also estimated that
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the vehicle was traveling between 45 and 53 miles per hour when it passed through
the intersection (id., p. 99; Trial Transcript, Exhibit E to Persico Aff., p. 191).
The offending vehicle, at a bus stop approximately a quarter mile north of the
subject intersection, had passed the stopped NFTA bus 38 seconds prior to impact
and was traveling between the speeds cited above (Trial Transcript, Exhibit D to
Persico Aff., pp. 99; 141-143). The vehicle, on the low end of the Deputy's estimate,
would have been 2,500 feet past the bus when traveling 45 mph (Trial Transcript,
Exhibit E to Persico Aff., p. 193). The vehicle, if traveling 50 mph, which is in the
middle of the Deputy's range, would have been 2,793 feet past the bus (id., p. 194).
Finally, if the vehicle was traveling 53 mph, the high end of the Deputy's estimate,
the vehicle would have been 2,953 feet past the bus (id., p. 194). Deputy Kent
admitted he could not have maintained eye contact with the offending vehicle at
that distance and admitted he could not recall whether he even maintained eye
contact with the vehicle (id., pp. 194-95).
Deputy Kent admitted also that he "made a mistake"; that he was
"responsible for the accident"; and that he was "at fault for the accident" (Trial
Transcript, Exhibit D to Persico Aff., pp. 117-118, 126). Furthermore, Deputy Kent
acknowledged that, following an investigation, his own Sergeant found that he was
at fault for the incident (id., p. 125). Deputy Kent had an opportunity to contest that
decision, but he chose not to (id., pp. 125-126). Further, Scott Joslyn in a letter from
Chief of Police Services found Deputy Kent at fault for the collision (id., p. 126).
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Deputy Kent again declined to oppose the decision (id.; see also Trial Exhibits 12A,
12B, and 12C).
Finally, although Defendant Deputy Kent claimed that the bus driver, while
standing outside of the bus, told him, "I'm really sorry, man, this is an old bus with
shitty brakes" (Trial Transcript, Exhibit D to Persico Aff., p. 144), the video
evidence, which has audio, is clear and speaks for itself. It revealed that the
conversation did not happen (NFTA Video, Exhibit A — camera one, front door,
6:33:30 — 6:45:30). Defendants did not call the NFTA bus driver as a witness to
support their contention that a conversation with that statement took place.
Based on the above testimony and video evidence, the Court properly granted
Plaintiffs motion for a directed verdict on the issue of Defendants' negligence.
Defendants' motion should therefore be denied insofar as predicated on the
contention that the Court erred in granting Plaintiff's motion.
POINT III
THE COURT PROPERLY GRANTED PLAINTIFF'S
REQUESTS TO PRECLUDE EVIDENCE THAT WAS
PREJUDICIAL AND INFLAMMATORY AND NOT
PROBATIVE OF ANY RELEVANT FACT
Contrary to Defendants' argument, the Court properly precluded testimony
and evidence regarding Plaintiffs criminal history, employment application, and
contact with an attorney following the collision, and it properly precluded
introduction of still photographs depicting the conditions of the vehicles following the
impact.
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To be admitted into evidence, information must be relevant. The Court of
Appeals has explained:
Evidence is relevant if it has any tendency in reason to
prove the existence of any material fact, i.e., it makes
determination of the action more probable or less probable
than it would be without the evidence.
People v. Scarola, 71 N.Y.2d 769, 777 (1988).
Relevant evidence is nevertheless inadmissible if its relevance is outweighed
by a likelihood of undue prejudice or juror confusion. As the Court of Appeals held
in Scarola:
Not all relevant evidence is admissible as of right, however.
Even where technically relevant evidence is admissible, it
may still be excluded by the trial court in the exercise of its
discretion if its probative value is substantially outweighed
by the danger that it will unfairly prejudice the other side
or mislead the jury.
71 N.Y.2d at 777.
The Court of Appeals has further held that a trial court is vested with the
discretion to exclude otherwise relevant and admissible evidence if it "finds that the
risk of confusion or prejudice outweighs the advantage of receiving it." Salm v.
Moses, 13 N.Y.3d 816, 818 (2009). The Fourth Department applied the same
principle in Bodensteiner v. Vannais, 167 A.D.2d 954 (4th Dep't 1990), in which it
held: "The decision whether to admit evidence that is logically relevant, but is so
prejudicial that its probative value is outweighed, rests within the sound discretion
of the court." Id. at 954. Similarly, in Siemucha v. Garrison, 111 A.D.3d 1398 (4th
Dep't 2013), the Fourth Department held:
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We reject defendants' contention that the court erred in
precluding them from raising plaintiffs prior drug
addiction and substance abuse at trial. Although the drug
addiction and substance abuse were relevant to plaintiffs
credibility, it is well settled that the nature and extent of
cross-examination rests firmly with the trial court. We
perceive no abuse of discretion here inasmuch as, under the
circumstances of this case, it would be more prejudicial
than probative to allow such cross-examination.
Siemucha, 111 A.D.3d at 1399-1400 (citations omitted).
A. Plaintiff's Prior Criminal History was Properly Precluded.
The introduction of evidence relating to Christopher Thurston's prior
criminal convictions, including those remote in time, together with his conviction of
attempted strangulation, were properly excluded because the prejudice arising from
the evidence far outweighed any probative value.
The central issues in the case were the determination of (1) the injuries that
Plaintiff suffered as a proximate consequence of the collision, and (2) the monetary
compensation to which Plaintiff was entitled as a result of those injuries.
Defendants, however, sought to make the case one about an African American
criminal with an unstable work history who could not be trusted.
Courts throughout the State of New York, including the Court of Appeals and
the Fourth Department, have held that evidence of prior criminal convictions
should be excluded for being remote in time, as they do not have any logical bearing
on the witness's credibility, veracity or honesty at the time of trial. People v.
Sandoval, 34 N.Y.2d 371 (1974); see also Ubiles v. Halliwell-Kemp, 167 A.D.3d 1511,
1511-12 (4th Dep't 2018) (holding trial court did not abuse its discretion when it
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precluded defendant from impeaching plaintiff with evidence of a drug conviction
from 15 years earlier); Tornatore v. Cohen, 162 A.D.3d 1503 (4th Dep't 2018)
(finding the trial court properly exercised its discretion when precluding defendant
from impeaching plaintiffs out of state criminal conviction); Lopez v. City of New
York, 192 A.D.3d 634 (1st Dep't 2021) (finding trial court properly excluded cross-
examination testimony concerning plaintiff's prior 14 drug-related convictions,
which have no bearing on plaintiffs credibility); Hosmer v. Distler, 150 A.D.2d 974
(3rd Dep't 1989) (finding the trial court properly precluded plaintiffs past three
convictions accumulated in the past three years for driving while intoxicated to be
offered on the crucial issues of damages pertaining to life expectancy and ability to
provide for his survivors, as the danger the jury may have unfairly concluded was
that the plaintiff was intoxicated on the night of his fatal accident based on a
propensity to become intoxicated).
Plaintiffs drug conviction from 15 years prior is directly on point with the
Fourth Department case in Ubiles. The older convictions are even more prejudicial
and less probative, especially given that Mr. Thurston was gainfully employed and
on his way into work at the time of the collision. Clearly, the Defendants' only
motivation for introducing that information was to inflame or confuse the jury.
With respect to the conviction of attempted strangulation, the Court properly
precluded defendants from cross-examining Mr. Thurston as to that conviction
because on its face it is utterly prejudicial. As with plaintiffs other prior
convictions, this conviction was not based on his lack of veracity. Defendants' only
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rationale for introducing evidence of the conviction was to inflame the jurors, so
that they would discredit plaintiff notwithstanding the physician testimony, witness
testimony, and video evidence establishing the nature and severity of plaintiffs
injuries.
Further, the Court cautioned plaintiff on this issue so as to not open the door
to the prior criminal convictions when pursuing damages. (Motion Transcript,
Exhibit C to Persico Aff., p. 33). The Court indicated that defense could cross
examine Plaintiffs economist, if he called one, to illicit testimony about what the
economist relied upon when reaching his conclusions about future projections.
Plaintiff did not call an economist and, in turn, did not open the door.
In sum, Defendants received a fair trial before an impartial jury. There was
no error in precluding evidence of Plaintiffs prior criminal convictions, and Plaintiff
did not open the door to the prior criminal convictions. As such, Defendants' motion
Preview
FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE CHRISTOPHER F. THURSTON, vs. Index No. 802615/2020 TIMOTHY B. HOWARD, in his official Capacity as Sheriff of Erie County OFFICE OF THE ERIE COUNTY SHERIFF DEPUTY KENT, Defendants. MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' POST-TRIAL MOTION Respectfully submitted, LIPSITZ GREEN SCIME CAMBRIA LLP Attorneys for Plaintiff 42 Delaware Avenue, Suite 120 Buffalo, New York 14202 (716) 849-1333 6422172v1 - 066872.0001 1 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 PRELIMINARY STATEMENT Plaintiff, Christopher F. Thurston, submits this Memorandum of Law in opposition to Defendants' motion pursuant to CPLR 4404 (a), by which they seek to have the jury's verdict set aside and secure a new trial. For the reasons set forth below, Defendants' motion should be denied in its entirety. STATEMENT OF FACTS The relevant facts are recited in the accompanying Affirmation of James T. Scime, Esq., and will not be repeated for purposes of brevity. ARGUMENT POINT I THE COURT PROPERLY HELD THAT DEFENDANTS COULD NOT INVOKE VEHICLE AND TRAFFIC LAW § 1104 GIVEN THE PROCEDURAL HISTORY AND FACTS OF THIS CASE. As demonstrated below, the Court properly denied Defendants' request to charge the jury with the standard of care set forth in Vehicle and Traffic Law § 1104 ("VTL 1104") for two independently sustainable reasons: First, the Court, exercising its discretion under CPLR 3126, precluded Defendants' reliance upon VTL 1104 because Defendants had willfully delayed producing discovery requested by Plaintiff pertinent to the issue of liability, even though it was ordered by a Judicial Subpoena. Second, the Court held that Defendants could not invoke VTL 1104 because they had failed to raise it as an affirmative defense. Furthermore, as Plaintiff demonstrated in his response to Defendants' trial memorandum (NYSCEF Doc. No. 36, pp. 7-10), VTL 1104 is any event inapplicable 6422172v1 - 066872.0001 2 2 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 as a matter of law because Deputy Kent was not engaged in conduct that — although generally prohibited under the Rules of the Road — is privileged under the statute when performed by a police officer who is engaged in an emergency operation. A. The Court Properly Precluded Defendants' Reliance Upon VTL 1104 Pursuant to CPLR 3126. The Court articulated its ruling by referencing its discretionary powers under CPLR 3126 and the Court of Appeals' decision in Oak Beach Inn Corp. v. Babylon Beacon, 62 N.Y.2d 158 (1984), and by distinguishing Wilson v. State, 269 A.D.2d 854 (4th Dep't 2000). See Motion Transcript, Nov. 30, 2023, Exhibit C to Persico Affirmation, pp. 22-26. Under CPLR 3126, the penalties that may be imposed for a party's refusal to comply with an order, or for willfully failing to disclose information which the court finds ought to have been disclosed, include: 2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or 3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party. CPLR 3126. The Court of Appeals held in Oak Beach Inn Corp. that the general rule is that the demanding party should not be granted more relief for nondisclosure than is reasonably necessary to protect legitimate interests. 62 N.Y.2d at 166-67. 6422172v1 - 066872.0001 3 3 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 As this Court is aware, prior to the trial of December 11, 2023, trial was originally scheduled to go forward earlier in the year, but was adjourned to permit additional discovery by both parties, which included Deputy Kent's personnel file and the Sheriffs Policies and Procedures. Two Subpoenas Duces Tecum were signed on March 7, 2023, ordering the production of Deputy Gregory Robert Kent's employment file and a complete copy of the Sheriffs Policies and Procedures relative to, among other things, the use of overhead lights and sirens and pursuit of vehicles for traffic violations. NYSCEF Doc. Nos. 50 and 51. As set forth in the record, Plaintiff followed up on his demand for responsive documents several times over the approximately eight-month period following the subpoenas' issuance. Ultimately, Plaintiff filed a motion to strike Defendants' Answer (NYSCEF Docs. 83-93). The Court, in its discretion, precluded Defendants from invoking VTL 1104 rather than imposing the more drastic remedy of striking Defendants' Answer, as provided for under CPLR 3126 and Oak Beach Inn Corp. Accordingly, Defendants' motion should be denied because the Court, in the sound exercise of its discretion, precluded Defendants' reliance upon VTL 1104 as a penalty for Defendants' willful failure to comply with multiple court orders requiring the production of relevant, pertinent discovery and cross-examination materials related to the Deputy's acts at the time in question, i.e., the very conduct that served as a basis for Defendants' invocation of the statute. 6422172v1 - 066872.0001 4 4 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 B. Defendants Both Failed to Plead VTL 1104 as an Affirmative Defense and Affirmatively Conceded Their Lack of a Defense to the Deputy's Conduct. As this Court is aware, Defendants — throughout the litigation process and up to the brink of trial — indicated "they did not have a defense; the officer turned in front of a bus." Motion Transcripts, Exhibit C to Persico Aff., pp. 4-9. During all conferences with the Court in preparation for trial, counsel for the Defendants maintained they did not have a defense for the deputy's conduct. Then, at the final charging conference, Defendants requested that the standard of care set forth in VTL 1104 be charged. This was a surprise to both Plaintiff and the Court, based not only on defense counsel's prior representations but also on Defendants' failure to plead VTL 1104 in their answer and amplify that defense in their bill of particulars. After Defendants belatedly raised VTL 1104 as a defense, the parties briefed their respective positions as to whether the statute needed to be pled as an affirmative defense (NYSCEF Doc. Nos. 34-47). Defendants contended that it need not be pleaded. Plaintiff contended that it -did. In addition, Plaintiff at all times maintained this was a simple negligence case, not a case implicating the reckless- disregard standard, and that Defendants' liability had to be determined under the common-law standard of care applicable to all motorists (NYSCEF Doc. Nos. 36-44). Under CPLR 3018 (b), which governs the interposition of affirmative defenses, "a party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading . . . culpable conduct claimed in diminution of damages . . ." 6422172v1 - 066872.0001 5 5 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 As plaintiff argued (NYSCEF Doc. No. 36) and the Court found, VTL 1104 had to be pleaded as an affirmative defense in this action. In so holding, the Court distinguished Wilson v. State of New York (Motion Transcript, Nov. 30, 2023, Exhibit C to Persico Aff., pp. 24-26). Plaintiff further notes in this regard that Wilson involved the operation of a snowplow, thus implicating VTL 1103 and not VLT 1104. The Fourth Department has never held that VTL 1104 need not be pled as an affirmative defense. To the contrary, in Spence v. Kitchens, 210 A.D.3d 1416 (4th Dep't 2022), the court held: As an initial matter, plaintiffs contention that defendants are not entitled to assert the affirmative defense of emergency operation under Vehicle and Traffic Law § 1104 because it was not pleaded in the answers is raised for the first time on appeal and, therefore, that contention is not properly before us. 210 A.D.3d at 1417 (citations omitted) (emphasis supplied). Thus, the Fourth Department in Spence implicitly recognized that VTL 1104 must be raised as an affirmative defense, while holding that plaintiff had failed to preserve the issue in the trial court. Christopher Thurston, by contrast, duly raised and preserved the issue in this Court. Accordingly, Defendants' post-trial motion should be denied insofar as it asserts that the Court improperly precluded Defendants from relying on VTL 1104 because Defendants failed to plead the statute as an affirmative defense and, when Defendants belatedly raised the issue at the final charging conference, Plaintiff was unduly surprised and prejudiced. 6422172v1 - 066872.0001 6 6 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 C. Deputy Kent Was Not Engaged in Conduct Privileged Under VTL 1104 at the Time of the Collision. In any event, as Plaintiff initially demonstrated in his response to Defendants' trial memorandum of law (NYSCEF Doc. No. 36), Deputy Kent was not engaged in conduct privileged under VTL 1104 when he collided with the NFTA bus on October 16, 2019, while attempting to make a U-turn on Grand Island Boulevard. In relevant part, Vehicle and Traffic Law § 1104 provides: (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: 1. Stop, stand or park irrespective of the provisions of this title; 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; 4. Disregard regulations governing directions of movement or turning in specified directions. (c) Except for an authorized emergency vehicle operated as a police vehicle or bicycle, the exemptions herein granted to an authorized emergency vehicle shall apply only when audible signals are sounded from any said vehicle while in motion by bell, horn, siren, electronic device or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted lamp so that from any direction, under normal atmospheric conditions from a distance of five hundred feet from such vehicle, at least one red light will be displayed and visible. .... 6422172v1 - 066872.0001 7 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 (e) The 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 Kabir v. County of Monroe, 16 N.Y.3d 217 (2011), aff'g 68 A.D.3d 1628 (4th Dep't 2009), the Court of Appeals held that "Vehicle and Traffic Law § 1104 (e) is limited to accidents or incidents caused by exercise of a privilege identified in Vehicle and Traffic Law § 1104 (b)." 16 N.Y.3d at 226. Accordingly, "if the conduct causing the accident resulting in injuries and damages is not privileged under Vehicle and Traffic Law § 1104 (b), the standard of care for determining civil liability is ordinary negligence." Id. at 230-231. In applying that principle, the Court in Kabir upheld a judgment entered in favor of a motorist who was rear-ended by a sheriffs deputy who was responding to an emergency call. 16 N.Y.3d at 220-222. At the time of the incident, the deputy was traveling southbound, below the speed limit, on a highway with two through lanes and a left turn lane. Id. at 220-221. The deputy looked down at his terminal monitor for two to three seconds and, when he looked up, saw that "traffic had slowed." Id. at 221. Although he braked, he struck the rear end of the vehicle driven by plaintiff, who was proceeding through a congested intersection. Id. Thus, at the time of the collision, the deputy was not exercising any of the privileged conduct authorized by Vehicle and Traffic Law § 1104 (b), i.e., he was not stopping, standing, or parking in a place where it is prohibited; traveling through a red light or stop sign; speeding; or disregarding regulations governing turns or directions of movement. Accordingly, 6422172v1 - 066872.0001 8 8 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 the deputy was subject to the ordinary negligence standard of care applicable to all motorists, 16 N.Y.3d at 230-231, and was therefore liable as a matter of law because he failed to establish a nonnegligent explanation for the accident. Id. at 222. In accordance with Kabir's construction of Vehicle and Traffic Law § 1104 (b), New York's trial and appellate courts have consistently held that the statute is inapplicable where the operator of an authorized emergency vehicle was not engaged in one of the four enumerated categories of privileged conduct. Thus, in Katanov v. County of Nassau, 91 A.D.3d 723 (2d Dep't 2012), the court held that a police officer was subject to a negligence standard of care rather than section 1104's reckless-disregard standard when the officer struck plaintiff as the officer was pulling into a parking space while responding to a 911 call. Id. at 724-725. Citing Kabir, the court held that "the injury-causing conduct of the police officer, i.e., making a turn into a parking space located within the parking lot while traveling at approximately two miles per hour, did not fall within any of the categories of privileged conduct set forth in Vehicle and Traffic Law § 1104 (b)." Id. at 725. In Baracel v. City of Yonkers, 52 Misc.3d 544 (Sup. Ct. Westchester County 2016), similarly, the court held that section 1104 was inapplicable where a police officer operating an emergency vehicle struck the plaintiff while the officer was pulling into a driveway. Id. at 545, 547-549. The court rejected the defendants' contention that the officer was engaged in privileged conduct under the statute because he turned into the driveway without signaling and was speeding, i.e., traveling at 5 to 7 m.p.h. when the statutory limit is 5 m.p.h. Id. at 548-549 & n. 1. 6422172v1 - 066872.0001 9 9 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 "[Flailing to use a turn signal or driving into a driveway is not conduct delineated in Vehicle and Traffic Law § 1104 (b)," the court held, and the officer's de minimus speeding had no nexus to the incident, which resulted from the officer's failure to see plaintiff. Id. at 549. Also instructive here is Holliday v. City of New Rochelle, 2019 WL 11025571 (Sup. Ct. Westchester County Sept. 11, 2019), aff'd, 195 A.D.3d 1002 (2d Dep't 2021), in which Supreme Court held that where a police officer who was facing the wrong way on a one-way street pulled into a semi-circular driveway to turn around, and struck a pole in the process, the officer's "actions do not fall within the qualified immunity protections of VTL 1104 (b) (4)." 2019 WL 11025571, *1-3. "The negligent conduct," the court explained, consisted of "the failure to see the pole which was there to be seen," which "was not conduct specified in VTL 1104 (b) as exempt from the rules of the road." Id., *3. The Appellate Division affirmed, holding that the officer's "injury-causing conduct did not fall within any of the categories of privileged conduct set forth in Vehicle and Traffic Law § 1104 (b)." 195 A.D.3d at 1002 (citations omitted). Like the law enforcement personnel in Kabir, Katanov, Baracel, and Holliday, Deputy Kent was not engaged in conduct privileged under Vehicle and Traffic Law § 1104 (b) at the time he collided with the NFTA bus, and he was thus subject to the common-law negligence standard of care rather than the reckless- disregard standard. As established by his testimony, immediately prior to the collision, the deputy was northbound on Grand Island Boulevard, when he observed 6422172v1 - 066872.0001 10 10 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 a vehicle traveling in the opposite direction that appeared to have its taillights out (Trial Transcript, Exhibit D to Persico Aff., pp. 87, 107, 115). From his position along the right-hand curb, Deputy Kent attempted to make a U-turn (id. at pp. 100, 115). Upon doing so, Deputy Kent drove his SUV into the path of an NFTA bus in the oncoming lane of travel without looking for oncoming traffic (id. at pp. 100, 115, 112). At the time of the incident, Deputy Kent was not engaged in conduct privileged under Vehicle and Traffic Law § 1104 as he was not stopping, standing, or parking in a place where it is prohibited; traveling through a red light or stop sign; speeding; or disregarding regulations governing turns or directions of movement. As demonstrated below, U-turns are not prohibited on the highway where Deputy Kent collided with the bus in which Plaintiff was traveling, and any motorist could have legally made a U-turn at the same location (provided that, unlike Deputy Kent, he or she exercised due care in doing so). Section 158-a of Vehicle and Traffic Law defines a "U turn" as "[a]ny turn executed so as to proceed in the opposite direction." Such turns are not universally prohibited in New York State. See Cunningham, Practice Commentaries, McKinney's Cons. Laws of N.Y., Vehicle and Traffic Law § 1160 ("Contrary to the rules of some other states, U-turns are not per se illegal in New York."). Rather, they are proscribed only under certain expressly defined circumstances. Thus, Vehicle and Traffic Law § 1161 provides that no motor vehicle may make a U-turn on a curve, near the crest of hill, or in a school zone, and that no stretch limousine 6422172v1 - 066872.0001 11 11 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 may make a U-turn on any public highway. Further, Vehicle and Traffic Law § 1160 (e) provides that, when a U-turn is made at an intersection, it must "be made from and to that portion of the highway nearest the marked center line." In addition, U-turns are proscribed by regulations applicable only to certain designated highways. Thus, 17 NYCRR 182.40 prohibits U-turns on the State's parkways unless made by authorized emergency vehicles or other authorized vehicles. Similarly, 21 NYCRR 103.5 prohibits U-turns on the New York State Thruway unless made by authorized individuals. In accordance with New York's statutory framework permitting U-turns on the State's highways unless expressly prohibited, the courts have rejected claims that the making of a U-turn is per se illegal. Thus, in People v. Quiros, 66 Misc.3d 142(A) (App. Term 2020), the court — in reversing the defendant's conviction for violating Vehicle and Traffic Law § 1110 (a) by crossing double solid yellow lines while making a U-turn — held that "[w]hile U-turns may be prohibited for other purposes (see e.g. Vehicle and Traffic Law §§ 1160 [e]; 1161), or where a sign specifically prohibits such a maneuver, there is no provision contained within the Vehicle and Traffic Law which prohibits the crossing of solid double yellow lines to make a U-turn." Id., *1. Indeed, the court noted, the Driver's Manual published by the New York State Department of Motor Vehicles expressly states that a motorist may cross double yellow lines "to do a U-turn." Id. n.1. See also People v. Palermo, 33 Misc.3d 1205(A), *3 (Geneva City Court Sept. 28, 2009) (in granting defendant's 6422172v1 - 066872.0001 12 12 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 suppression motion in a prosecution arising out of a motor vehicle stop, the court held that "[c]learly there is nothing illegal in the act of making a U-turn per se"). In the present case, Deputy Kent did not make a U-turn on a hill or curve or at an intersection, and he was not traveling on a New York State parkway or the New York State Thruway or in a school zone. Nor was Deputy Kent driving a stretch limousine. Thus, the collision was not caused by Deputy Kent's exercise of a privilege identified in Vehicle and Traffic Law § 1104 (b), including in particular the privilege excusing him from following "regulations governing directions of movement or turning in specified directions." Accordingly, "the standard of care for determining civil liability is ordinary negligence." Kabir, at 230-231. Finally, and independent of the foregoing analysis, Deputy Kent's failure to see that which was there to be seen was not privileged under VTL 1104, and renders the statute inapplicable. In Starkman v. City of Long Beach, 106 A.D.3d 1076 (2d Dep't 2013), the Second Department held that, under Kabir v. County of Monroe, "Vehicle and Traffic Law § 1104 does not apply to . . . conduct, such as where an accident occurs because the police officer did not see that which through the proper use of his or senses he or she should have seen." Id. at 1078 (citation omitted). Applying that principle, the court in Starkman held: In the instant case, [the defendant officer] acknowledged that he did not see the plaintiff until after he struck him with his car. His conduct — the failure to see that which was there to be seen — was not conduct specified in Vehicle and Traffic Law § 1104 (b) as exempt from the rules of the road. 6422172v1 - 066872.0001 13 13 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 Accordingly, his conduct was governed by the principles of ordinary negligence. Id. Here, as in Starkman, the injury-producing incident was caused by Deputy Kent's failure to see that which he should have seen, not by his engagement in conduct privileged under Vehicle and Traffic Law § 1104 (b). Deputy Kent testified that he did not see a bus at any point prior to beginning his turn. Rather, he attempted to claim that a vehicle was blocking his view of the bus. Following cross- examination, Deputy Kent essentially recanted this fabricated claim. Thus, the collision occurred because Deputy Kent failed to see what was there to be seen before initiating the U-turn. That conduct is not privileged under Vehicle and Traffic Law § 1104 and is therefore "governed by principles of ordinary negligence" rather than the statute's reckless-disregard standard. Starkman, 106 A.D.3d at 1078. Accordingly, the facts and circumstances surrounding this case do not warrant the application of the standard of care set forth in § 1104. POINT II THE COURT PROPERLY GRANTED PLAINTIFF'S MOTION FOR A DIRECTED VERDICT ON THE ISSUE OF DEPUTY KENT'S NEGLIGENCE. Even when considered in a light most favorable to Defendants, the testimony and evidence established that Deputy Kent was negligent for making an improper U- turn into the path of an oncoming bus, which was traveling with the right-of-way, without even looking to see if there was any oncoming traffic. Thus, there was no rational process by which the jury could have found in Defendants' favor on the issue 6422172v1 - 066872.0001 14 14 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 of negligence. Accordingly, the Court properly granted Plaintiffs motion for a directed verdict on that issue. At trial, Deputy Kent's testimony and the video evidence established that, prior to initiating a U-turn, Deputy Kent, who was in the northbound lane on Grand Island Boulevard, failed to see the NFTA bus in the oncoming lane of travel and turned directly into the path of the bus, which had the right-of-way (Trial Transcript, Exhibit D to Persico Aff., pp. 100, 103, 112, 136-137). Indeed, Deputy Kent admitted that he did not see the bus because he was not looking for oncoming traffic (id., p. 112). Moreover, Deputy Kent did not, at any point prior to the impact, turn on his SUV's sirens or overhead lights to warn the public of an impending traffic stop (id., p. 103; see also NFTA Video, Exhibit 1 in evidence, attached hereto as Exhibit A). Furthermore, contrary to Defendants' position, the testimony and evidence established that the vehicle Deputy Kent intended to pursue was not traveling approximately "four to six car lengths" in front of the bus, and thus allegedly blocking the deputy's view of the bus as it proceeded south on Grand Island Boulevard (Trial Transcript, Exhibit D to Persico Aff., pp. 112-114; Video, Exhibit A hereto). Rather, Deputy Kent admitted that the offending vehicle had already passed through the intersection of Grand Island Boulevard and Baseline Road, located to the south of the collision site, because it had a green signal (Trial Transcript, Exhibit D to Persico Aff., pp. 90, 98-99). The deputy also estimated that 6422172v1 - 066872.0001 15 15 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 the vehicle was traveling between 45 and 53 miles per hour when it passed through the intersection (id., p. 99; Trial Transcript, Exhibit E to Persico Aff., p. 191). The offending vehicle, at a bus stop approximately a quarter mile north of the subject intersection, had passed the stopped NFTA bus 38 seconds prior to impact and was traveling between the speeds cited above (Trial Transcript, Exhibit D to Persico Aff., pp. 99; 141-143). The vehicle, on the low end of the Deputy's estimate, would have been 2,500 feet past the bus when traveling 45 mph (Trial Transcript, Exhibit E to Persico Aff., p. 193). The vehicle, if traveling 50 mph, which is in the middle of the Deputy's range, would have been 2,793 feet past the bus (id., p. 194). Finally, if the vehicle was traveling 53 mph, the high end of the Deputy's estimate, the vehicle would have been 2,953 feet past the bus (id., p. 194). Deputy Kent admitted he could not have maintained eye contact with the offending vehicle at that distance and admitted he could not recall whether he even maintained eye contact with the vehicle (id., pp. 194-95). Deputy Kent admitted also that he "made a mistake"; that he was "responsible for the accident"; and that he was "at fault for the accident" (Trial Transcript, Exhibit D to Persico Aff., pp. 117-118, 126). Furthermore, Deputy Kent acknowledged that, following an investigation, his own Sergeant found that he was at fault for the incident (id., p. 125). Deputy Kent had an opportunity to contest that decision, but he chose not to (id., pp. 125-126). Further, Scott Joslyn in a letter from Chief of Police Services found Deputy Kent at fault for the collision (id., p. 126). 6422172v1 - 066872.0001 16 16 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 Deputy Kent again declined to oppose the decision (id.; see also Trial Exhibits 12A, 12B, and 12C). Finally, although Defendant Deputy Kent claimed that the bus driver, while standing outside of the bus, told him, "I'm really sorry, man, this is an old bus with shitty brakes" (Trial Transcript, Exhibit D to Persico Aff., p. 144), the video evidence, which has audio, is clear and speaks for itself. It revealed that the conversation did not happen (NFTA Video, Exhibit A — camera one, front door, 6:33:30 — 6:45:30). Defendants did not call the NFTA bus driver as a witness to support their contention that a conversation with that statement took place. Based on the above testimony and video evidence, the Court properly granted Plaintiffs motion for a directed verdict on the issue of Defendants' negligence. Defendants' motion should therefore be denied insofar as predicated on the contention that the Court erred in granting Plaintiff's motion. POINT III THE COURT PROPERLY GRANTED PLAINTIFF'S REQUESTS TO PRECLUDE EVIDENCE THAT WAS PREJUDICIAL AND INFLAMMATORY AND NOT PROBATIVE OF ANY RELEVANT FACT Contrary to Defendants' argument, the Court properly precluded testimony and evidence regarding Plaintiffs criminal history, employment application, and contact with an attorney following the collision, and it properly precluded introduction of still photographs depicting the conditions of the vehicles following the impact. 6422172v1 - 066872.0001 17 17 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 To be admitted into evidence, information must be relevant. The Court of Appeals has explained: Evidence is relevant if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence. People v. Scarola, 71 N.Y.2d 769, 777 (1988). Relevant evidence is nevertheless inadmissible if its relevance is outweighed by a likelihood of undue prejudice or juror confusion. As the Court of Appeals held in Scarola: Not all relevant evidence is admissible as of right, however. Even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury. 71 N.Y.2d at 777. The Court of Appeals has further held that a trial court is vested with the discretion to exclude otherwise relevant and admissible evidence if it "finds that the risk of confusion or prejudice outweighs the advantage of receiving it." Salm v. Moses, 13 N.Y.3d 816, 818 (2009). The Fourth Department applied the same principle in Bodensteiner v. Vannais, 167 A.D.2d 954 (4th Dep't 1990), in which it held: "The decision whether to admit evidence that is logically relevant, but is so prejudicial that its probative value is outweighed, rests within the sound discretion of the court." Id. at 954. Similarly, in Siemucha v. Garrison, 111 A.D.3d 1398 (4th Dep't 2013), the Fourth Department held: 6422172v1 - 066872.0001 18 18 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 We reject defendants' contention that the court erred in precluding them from raising plaintiffs prior drug addiction and substance abuse at trial. Although the drug addiction and substance abuse were relevant to plaintiffs credibility, it is well settled that the nature and extent of cross-examination rests firmly with the trial court. We perceive no abuse of discretion here inasmuch as, under the circumstances of this case, it would be more prejudicial than probative to allow such cross-examination. Siemucha, 111 A.D.3d at 1399-1400 (citations omitted). A. Plaintiff's Prior Criminal History was Properly Precluded. The introduction of evidence relating to Christopher Thurston's prior criminal convictions, including those remote in time, together with his conviction of attempted strangulation, were properly excluded because the prejudice arising from the evidence far outweighed any probative value. The central issues in the case were the determination of (1) the injuries that Plaintiff suffered as a proximate consequence of the collision, and (2) the monetary compensation to which Plaintiff was entitled as a result of those injuries. Defendants, however, sought to make the case one about an African American criminal with an unstable work history who could not be trusted. Courts throughout the State of New York, including the Court of Appeals and the Fourth Department, have held that evidence of prior criminal convictions should be excluded for being remote in time, as they do not have any logical bearing on the witness's credibility, veracity or honesty at the time of trial. People v. Sandoval, 34 N.Y.2d 371 (1974); see also Ubiles v. Halliwell-Kemp, 167 A.D.3d 1511, 1511-12 (4th Dep't 2018) (holding trial court did not abuse its discretion when it 6422172v1 - 066872.0001 19 19 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 precluded defendant from impeaching plaintiff with evidence of a drug conviction from 15 years earlier); Tornatore v. Cohen, 162 A.D.3d 1503 (4th Dep't 2018) (finding the trial court properly exercised its discretion when precluding defendant from impeaching plaintiffs out of state criminal conviction); Lopez v. City of New York, 192 A.D.3d 634 (1st Dep't 2021) (finding trial court properly excluded cross- examination testimony concerning plaintiff's prior 14 drug-related convictions, which have no bearing on plaintiffs credibility); Hosmer v. Distler, 150 A.D.2d 974 (3rd Dep't 1989) (finding the trial court properly precluded plaintiffs past three convictions accumulated in the past three years for driving while intoxicated to be offered on the crucial issues of damages pertaining to life expectancy and ability to provide for his survivors, as the danger the jury may have unfairly concluded was that the plaintiff was intoxicated on the night of his fatal accident based on a propensity to become intoxicated). Plaintiffs drug conviction from 15 years prior is directly on point with the Fourth Department case in Ubiles. The older convictions are even more prejudicial and less probative, especially given that Mr. Thurston was gainfully employed and on his way into work at the time of the collision. Clearly, the Defendants' only motivation for introducing that information was to inflame or confuse the jury. With respect to the conviction of attempted strangulation, the Court properly precluded defendants from cross-examining Mr. Thurston as to that conviction because on its face it is utterly prejudicial. As with plaintiffs other prior convictions, this conviction was not based on his lack of veracity. Defendants' only 6422172v1 - 066872.0001 20 20 of 37 FILED: ERIE COUNTY CLERK 04/15/2024 04:04 PM INDEX NO. 802615/2020 NYSCEF DOC. NO. 163 RECEIVED NYSCEF: 04/15/2024 rationale for introducing evidence of the conviction was to inflame the jurors, so that they would discredit plaintiff notwithstanding the physician testimony, witness testimony, and video evidence establishing the nature and severity of plaintiffs injuries. Further, the Court cautioned plaintiff on this issue so as to not open the door to the prior criminal convictions when pursuing damages. (Motion Transcript, Exhibit C to Persico Aff., p. 33). The Court indicated that defense could cross examine Plaintiffs economist, if he called one, to illicit testimony about what the economist relied upon when reaching his conclusions about future projections. Plaintiff did not call an economist and, in turn, did not open the door. In sum, Defendants received a fair trial before an impartial jury. There was no error in precluding evidence of Plaintiffs prior criminal convictions, and Plaintiff did not open the door to the prior criminal convictions. As such, Defendants' motion