Opinion
2014-09-26
Charles G. MICHAELS and Elizabeth Michaels, Plaintiffs–Appellants, v. Matthew DRAKE and City of Rochester, Defendants–Respondents. (Appeal No. 2.).
William P. Smith, Jr., Rochester, for Plaintiffs–Appellants.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY AND WHALEN, JJ.
MEMORANDUM:
Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Charles G. Michaels when the vehicle he was driving collided with a vehicle driven by defendant Matthew Drake, a police officer with defendant City of Rochester. Following a bench trial, Supreme Court found in favor of defendants and dismissed the complaint. We affirm. Viewing the evidence in the light most favorable to sustain the judgment following this bench trial ( see Wayne Coop. Ins. Co. v. Woodward, 21 A.D.3d 1270, 1272, 802 N.Y.S.2d 293), we conclude that a fair interpretation of the evidence supports the court's verdict. It is undisputed that at the time of the accident Drake was operating his vehicle in response to a dispatch call concerning a domestic dispute. He was thus engaged in the emergency operation of a vehicle as defined in Vehicle and Traffic Law § 114–b as a matter of law ( see Criscione v. City of New York, 97 N.Y.2d 152, 154, 736 N.Y.S.2d 656, 762 N.E.2d 342; Nikolov v. Town of Cheektowaga, 96 A.D.3d 1372, 1373, 946 N.Y.S.2d 734), and the applicable standard of liability is reckless disregard for the safety of others rather than ordinary negligence ( see§ 1104[e]; Criscione, 97 N.Y.2d at 154, 736 N.Y.S.2d 656, 762 N.E.2d 342; Herod v. Mele, 62 A.D.3d 1269, 1270, 877 N.Y.S.2d 807, lv. denied13 N.Y.3d 717, 2010 WL 154722). Although Drake admitted that he exceeded the speed limit in responding to the dispatch, speeding is expressly privileged under Vehicle and Traffic Law § 1104(b)(3) provided that the driver “does not endanger life or property” ( id.; see Saarinen v. Kerr, 84 N.Y.2d 494, 499, 620 N.Y.S.2d 297, 644 N.E.2d 988; Herod, 62 A.D.3d at 1270, 877 N.Y.S.2d 807), and his conduct did not constitute the type of recklessness necessary for liability to attach ( see Szczerbiak v. Pilat, 90 N.Y.2d 553, 557, 664 N.Y.S.2d 252, 686 N.E.2d 1346; Dodds v. Town of Hamburg, 117 A.D.3d 1428, 1429–1430, 984 N.Y.S.2d 752).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.