Opinion
1135 CA 18–00677
11-16-2018
Lafawn FLOOD, Plaintiff–Respondent, v. CITY OF SYRACUSE, City of Syracuse Police Department and Jeremy L. Baldwin, Defendants–Appellants.
KRISTEN E. SMITH, CORPORATION COUNSEL, SYRACUSE (MARY L. D'AGOSTINO OF COUNSEL), FOR DEFENDANTS–APPELLANTS. IZZO LAW OFFICE, PLLC, SYRACUSE (JANET M. IZZO OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
KRISTEN E. SMITH, CORPORATION COUNSEL, SYRACUSE (MARY L. D'AGOSTINO OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
IZZO LAW OFFICE, PLLC, SYRACUSE (JANET M. IZZO OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.
Memorandum: Plaintiff commenced this action to recover damages for injuries that she allegedly sustained in a motor vehicle accident. On the morning in question, plaintiff was driving her vehicle an undetermined distance behind a patrol vehicle operated by defendant Jeremy L. Baldwin, a police officer employed by defendant City of Syracuse Police Department. Baldwin attempted to execute a U-turn in order to pursue a suspect in a domestic incident. Before he attempted the U-turn, he checked his driver's side and rearview mirrors, turned his head, and saw no vehicles behind him. Baldwin made an abrupt left and his vehicle collided with plaintiff's vehicle. Only thereafter, according to plaintiff's testimony, did Baldwin activate his overhead lights.
We agree with defendants that Supreme Court erred in denying their motion for summary judgment dismissing the complaint. "[T]he reckless disregard standard of care ... applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b)" ( Kabir v. County of Monroe, 16 N.Y.3d 217, 220, 920 N.Y.S.2d 268, 945 N.E.2d 461 [2011] ; see Dodds v. Town of Hamburg, 117 A.D.3d 1428, 1429, 984 N.Y.S.2d 752 [4th Dept. 2014] ). When the accident occurred, Baldwin was operating an "authorized emergency vehicle" ( § 1104[a] ), and he "was engaged in an emergency operation by virtue of the fact that he was attempting a U-turn in order to ‘pursu[e] an actual or suspected violator of the law’ " ( Dodds, 117 A.D.3d at 1429, 984 N.Y.S.2d 752, quoting § 114–b). Thus, Baldwin's conduct was exempted from the rules of the road by section 1104(b)(4) and is governed by the reckless disregard standard of care in section 1104(e) (see Dodds, 117 A.D.3d at 1429, 984 N.Y.S.2d 752 ).
A " ‘momentary judgment lapse’ does not alone rise to the level of recklessness required of the driver of an emergency vehicle in order for liability to attach" ( Szczerbiak v. Pilat, 90 N.Y.2d 553, 557, 664 N.Y.S.2d 252, 686 N.E.2d 1346 [1997] ; see Dodds, 117 A.D.3d at 1429, 984 N.Y.S.2d 752 ). In support of their motion, defendants submitted evidence of the precautions Baldwin took before he attempted the U-turn and established as a matter of law that Baldwin's conduct did not rise to the level of reckless disregard for the safety of others, i.e., "he did not act with ‘conscious indifference’ to the consequences of his actions" ( Green v. State of New York, 71 A.D.3d 1310, 1312, 897 N.Y.S.2d 536 [3d Dept. 2010] ; see Dodds, 117 A.D.3d at 1430, 984 N.Y.S.2d 752 ; cf. Perkins v. City of Buffalo, 151 A.D.3d 1941, 1942, 57 N.Y.S.3d 866 [4th Dept. 2017] ). Plaintiff failed to raise an issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562–563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).