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Mfon v. County of Dutchess

United States District Court, S.D. New York

March 9, 2017

EMMANUEL MFON, Plaintiff,
v.
COUNTY OF DUTCHESS, et al., Defendants.

          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

          OPINION & ORDER

          Kenneth M. Karas UNITJED STATES 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 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]

         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 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 *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. 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.

         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 ...

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