United States District Court, S.D. New York
William Greenberg, Esq. The Greenberg Law Firm, LLP Purchase,
NY Counsel for Plaintiff
L. Posner, Esq. McCabe & Mack LLP Poughkeepsie, NY
Counsel for Defendants
OPINION & ORDER
Kenneth M. Karas UNITJED STATES DISTRICT JUDGE
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.
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).) 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).) 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 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.)
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.) 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.)
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,
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.)
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. ¶¶
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 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.)
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.)
Court held oral argument on the Motions on January 31, 2017.
(Dkt. (minute entry for Jan. 31, 2017).)
Standard of Review
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 *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)).
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. 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)).
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
Motion To Strike
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
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.
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.)
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
(iii) any exhibits that will be used to summarize or support
(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 ...