Pater v. City of BuffaloPater v. City of Buffalo
Appeals from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered July 22, 2014. The order, inter alia, granted the motion of defendants City of Buffalo and Buffalo Police Department for summary judgment.
It is hereby ordered that the order so appealed from is affirmed without costs.
Memorandum
Memorandum: Plaintiffs commenced individual actions alleging personal injuries arising out of incidents of sexual abuse committed by defеndant Gregg O‘Shei while he was on duty as a police officer for defendants City of Buffalo and the Buffalo Police Department (city defendants). O‘Shei allegedly selected
The court properly granted the motion with respect to plaintiffs’ theory that the city defendants negligently retained or supervised O‘Shei following his second of two on-duty motor vehicle accidents, the first in 1997 and the second in 2003. Plaintiffs contend that the city defendants failed to do an appropriate evaluation of O‘Shei‘s neuropsychological status after the second motor vehicle accident. Recоvery on a negligent retention theory “requires a showing that the employer was on notice of the relevant tortious propensit[y] of the wrongdoing employee” (Gomez v City of New York, 304 AD2d 374, 374-375 [2003]; see Zanghi v Laborers’ Intl. Union of N. Am., AFL-CIO, 8 AD3d 1033, 1034 [2004], lv denied
Our dissenting colleague applies a legal standard involving hiring procedures from Travis v United Health Servs. Hosps., Inc. (23 AD3d 884, 884-885 [2005]), but neither the Court of Appeals nor we have applied that standard in casеs such as this, where hiring procedures are not at issue. Indeed, as the dissent acknowledges, this is a retention case, and it is well settled that the common-law duty for retention does not require
Here, the city defendants established as a matter of law that they lacked notice of O‘Shei‘s propensity for the type of behavior causing plaintiffs’ harm (see Paul J.H. v Lum, 291 AD2d 894, 895 [2002]; Curtis v City of Utica, 209 AD2d 1024, 1025 [1994]). The city defendants demonstrated that O‘Shei never exhibited any behaviors indicative of his alleged propensity to target vulnerable victims for sexual abuse, nor did the medical information submitted to the City following either of O‘Shei‘s motor vehicle accidents contain any information alerting the city defendants to such propensity. Therefore, contrary to plaintiffs’ contention, no duty arose on the part of the city defendants to employ any specific procedures or otherwise to investigаte O‘Shei‘s fitness to return to work following the 2003 accident.
We conclude that plaintiffs failed to raise an issue of fact in opposition to the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Contrary to plaintiffs’ contention, the alleged conversation between one of the plaintiffs and her brother, a City of Buffalo patrol officer, does not raise an issue of fact whether the city defendants had actual notice of O‘Shei‘s tortious propensity. The record developed by plaintiffs is inadequate to establish the content of that alleged conversation, as well as the context and circumstances thereof (see generally Caselli v City of New York, 105 AD2d 251, 255-256 [1984]).
Plaintiffs also failed to raise an issue of fact that O‘Shei‘s alleged traumatic brain injury, as purportedly еxacerbated by the second motor vehicle accident, furnished constructive notice to the city defendants that O‘Shei was likely to exhibit disinhibited behaviors. As noted above, there is nothing in the record supporting that contention.
The dissent conflates the traumatic brain injury O‘Shei suffered in the 1997 motor vehicle accident, for which O‘Shei was fully evaluated before his return to wоrk in 2003, with “neuropsychological issues” that could be related to such an injury, but the record here does not establish that such “neuropsychological issues” ever existed. To the contrary, following the first motor vehicle accident, O‘Shei‘s physicians determined that there was “no evidence of emotional distress” and “no major psychological issues.” O‘Shei denied that hе was experiencing depression, anxiety, or PTSD symptoms, and he also told his physicians he “was not willing to consider counseling for issues associated with his brain injury.” Moreover, even after O‘Shei was expelled from the Buffalo Police Department and convicted of official misconduct, he testified at his deposition that he had never treated with any psychiatrists or рsychologists for any behavioral issues. Inasmuch as neither O‘Shei nor his physicians ever detected any “neuropsychological issues” warranting treatment, we conclude that the city defendants were never under a duty to detect such issues in the absence of facts warranting an investigation.
Finally, we conclude that the affidavits of plaintiffs’ experts failed to raise an issue of fact. Neither expert offered any detail with respect to the procedures or testing the city defendants should have engaged in following O‘Shei‘s second motor vehicle accident and, therefore, both of their opinions are conclusory (see Diaz v New York Downtown Hosp., 99 NY2d 542, 545 [2002]; Keller v Liberatore, 134 AD3d 1495, 1496 [2015]; Neville v Chautauqua Lake Cent. Sch. Dist., 124 AD3d 1385, 1386 [2015]). Moreover, the opinion offered in the affidavit of plaintiffs’ expert neuropsychologist—whо is not a medical
All concur except Peradotto, J.P., who dissents and votes to modify in accordance with the following memorandum. Present—Peradotto, J.P., Carni, Lindley, Curran and Troutman, JJ.
Dissent
Peradotto, J.P. (dissenting). Viewing the facts in the light most favorable to plaintiffs, and drawing every available inference in their favor (see De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]), I conclude that there are issues of fact that preclude granting summary judgment to defendants City of Buffalo and Buffalo Police Department (city defendants). I therefore respectfully dissent.
As an initial matter, contrary to the city defendants’ contention, plaintiffs did not improperly rely on a new theory of liability for negligence in opposition to the city defendants’ motion inasmuch as the allegations in plaintiffs’ complaints and the original verified bills of particulars were sufficient to encompass plaintiffs’ theory that the city defendants’ negligence arоse from the inadequacy of the procedures used in retaining defendant police officer Gregg O‘Shei (see Salvania v University of Rochester, 137 AD3d 1607, 1608 [2016]).
I disagree with the majority‘s conclusion, however, that the city defendants met their initial burden of eliminating all triable issues of fact with regard to that theory of negligence. Rather, the record establishes that there is an issue of fact whether the city defendants should have known—had they conducted an adequate procedure in retaining O‘Shei and returning him to patrol duty following a head injury he sustained in a motor vehicle accident in November 2003—that O‘Shei‘s conduct was reasonably foreseeable, that is, that he had a propensity to engage in the type of harm alleged by plaintiffs (see generally N. X. v Cabrini Med. Ctr., 280 AD2d 34, 42-43 [2001], mod on other grounds 97 NY2d 247 [2002]; Diana F. v Velez, 126 AD3d 856, 856 [2015]; Travis v United Health Servs. Hosps., Inc., 23 AD3d 884, 884-885 [2005]). As plaintiffs contend, while the evidence submitted by the city defendants established that O‘Shei was subjected to neurological testing following his first motor vehicle accident in 1997, and that the resulting records were reviewed by the police department‘s then-commissioner of legal affairs in determining O‘Shei‘s fitness to return to work in 2001, the city defendants’ submissions failed to establish that O‘Shei was subjected to any reten-tion
Even assuming, arguendo, that the city defendants met their initial burden on their motion, I conclude that plaintiffs raised a triable issue of fact. Plaintiffs submitted the expert affidavit of a neuropsychologist, who rеviewed O‘Shei‘s medical records, personally examined him, and prepared a report. The neuropsychologist opined that had the city defendants engaged in appropriate psychological or neuropsychological testing following O‘Shei‘s last reported brain injury in November 2003, they would have learned that such injury resulted in frontal lobe dysfunction that, in thе neuropsychologist‘s medical opinion, ultimately led to the behavior O‘Shei perpetrated against plaintiffs. In particular, the neuropsychologist opined that such testing would have revealed the propensity of O‘Shei to potentially engage in “disinhibited behaviors” and that O‘Shei‘s inhibitions against engaging in sexual predatory behaviors were compromised by his brain injuriеs. In his report, the neuropsychologist noted, inter alia, that, given O‘Shei‘s documented history of frontal lobe and limbic brain impairments, and the potential for behavioral problems as a consequence of those conditions, it was prudent and necessary for the city defendants to order a detailed neuropsychological examination, which would have highlighted O‘Shei‘s behavioral liabilities. Thus, according to the neuropsychologist, given the well-documented multiple traumatic brain injuries sustained by O‘Shei, a proper fitness-for-duty examination after the second accident and prior to O‘Shei‘s reinstatement as a police officer would have revealed his frontal lobe dysfunction, which would have precluded the city defеndants from returning him to work and which, in turn, would have prevented him from engaging in the sexual misconduct directed against plaintiffs. Contrary to the majority‘s determination, the neuropsycholo-gist‘s
I further disagree with the majority‘s conclusion that there is no triable issue of fact whether the city defendants had actual knowledge of O‘Shei‘s conduct based on the information conveyed to the brother of one of the plaintiffs, who was also a City of Buffalo patrol officer. “The general rule is that knowledge acquired by an agent acting within the scope of his [or her] agency is imputed to his principal and the latter is bound by such knowledge although the information is never actually communicated to it” (Center v Hampton Affiliates, 66 NY2d 782, 784 [1985]; see Kirschner v KPMG LLP, 15 NY3d 446, 465 [2010]). Even assuming, arguendo, that the city defendants met their initial burden on their motion, I conclude that plaintiffs rаised an issue of fact. The brother‘s deposition testimony established that one of the plaintiffs had informed him that O‘Shei was subjecting her to constant harassment and that he never reported the complaint to any superior officers because he did not think the plaintiff was credible. Plaintiffs also submitted the deposition of a police captain who testified that whеn a citizen makes a complaint to a police officer about another officer‘s conduct, protocol requires that the officer take the information and provide a report to a supervisor in order to ensure that the report is submitted to the Internal Affairs Division of the police department. I recognize that a jury could concludе that the brother did not obtain the relevant information about O‘Shei‘s harassment of the plaintiff in the course of his employment (see Christopher S. v Douglaston Club, 275 AD2d 768, 769 [2000]), or that the information conveyed was not sufficiently specific to provide actual knowledge that O‘Shei had engaged in coerced sexual activity with civilians, but this Court‘s function on a motion for summary judgment is issue finding, not issue determination (see Bridenbaker v City of Buffalo, 137 AD3d 1729, 1731 [2016]), аnd the evidence must be viewed in the light most favorable to plaintiffs with every available inference drawn in their favor
Finally, with respect to the alternative ground for affirmance properly raised by the city defendants (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 544-546 [1983]; Matter of Harnischfeger v Moore, 56 AD3d 1131, 1131 [2008]), i.e., that they are entitled to governmental immunity, I conclude that Supreme Court did not abuse its discretion in declining to consider that untimely and unpleaded affirmative defense (see generally Mawardi v New York Prop. Ins. Underwriting Assn., 183 AD2d 758, 758 [1992]; Fulford v Baker Perkins, Inc., 100 AD2d 861, 861-862 [1984]).
In light of the foregoing, I would modify the order on the law by denying the city defendants’ motion for summary judgment to the extent that plaintiffs allege negligent retention, reinstate that claim, and otherwise affirm. Present—Peradotto, J.P., Carni, Lindley, Curran and Troutman, JJ.