Opinion
2019-03318 Index No. 705076/15
07-01-2020
Luis CALIXTO, Appellant, v. CITY OF NEW YORK, et al., Respondents.
Ogen & Sedaghati, P.C., New York, N.Y. (Eitan Alexander Ogen of counsel), for appellant. James E. Johnson, Corporation Counsel, New York, N.Y. (Jane L. Gordon and Julie Steiner of counsel), for respondents.
Ogen & Sedaghati, P.C., New York, N.Y. (Eitan Alexander Ogen of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York, N.Y. (Jane L. Gordon and Julie Steiner of counsel), for respondents.
LEONARD B. AUSTIN, J.P. JOSEPH J. MALTESE HECTOR D. LASALLE VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered December 4, 2018. The order, insofar as appealed from, granted those branches of the defendants' motion which were for summary judgment dismissing the complaint insofar as asserted against the defendants City of New York and Girolamo Coladonato.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendants' motion which were for summary judgment dismissing the complaint insofar as asserted against the defendants City of New York and Girolamo Coladonato are denied.
The plaintiff commenced this action against the defendants City of New York and Girolamo Coladonato (hereinafter the defendant driver), among others, to recover damages for personal injuries that he allegedly sustained when the vehicle that he was operating came into contact with the defendants' unmarked police vehicle at the intersection of 35th Avenue and 77th Street in Queens. The plaintiff was traveling on 35th Avenue in a westerly direction with the traffic light in his favor. The defendants' vehicle was traveling on 77th Street in a northerly direction against a red traffic light, responding to a radio call for assistance. The defendants moved for summary judgment dismissing the complaint, contending, inter alia, that the defendant driver did not act in reckless disregard for the safety of others. The Supreme Court granted the defendants' motion. The plaintiff appeals from so much of the order as granted those branches of the defendants' motion which were for summary judgment dismissing the complaint insofar as asserted against the City and the defendant driver on the basis that the defendant driver did not act in reckless disregard for the safety of others.
"The manner in which a police officer operates his or her vehicle in responding to an emergency may form the basis of civil liability to an injured third party if the officer acted in reckless disregard for the safety of others" ( Rios v. City of New York, 144 A.D.3d 1011, 42 N.Y.S.3d 54 ; see Vehicle and Traffic Law § 1104[e] ; Criscione v. City of New York, 97 N.Y.2d 152, 156, 736 N.Y.S.2d 656, 762 N.E.2d 342 ; Saarinen v. Kerr, 84 N.Y.2d 494, 501, 620 N.Y.S.2d 297, 644 N.E.2d 988 ). "The reckless disregard standard requires proof that the officer intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow" (
Rios v. City of New York, 144 A.D.3d at 1011–1012, 42 N.Y.S.3d 54 ; see Campbell v. City of Elmira, 84 N.Y.2d 505, 510, 620 N.Y.S.2d 302, 644 N.E.2d 993 ; Saarinen v. Kerr, 84 N.Y.2d at 501, 620 N.Y.S.2d 297, 644 N.E.2d 988 ).
Here, the defendants failed to establish, prima facie, that the defendant driver did not act in reckless disregard for the safety of others in the operation of his vehicle (see Campbell v. City of Elmira, 84 N.Y.2d 505, 620 N.Y.S.2d 302, 644 N.E.2d 993 ; Rios v. City of New York, 144 A.D.3d at 1012, 42 N.Y.S.3d 54 ). Accordingly, the Supreme Court should have denied those branches of the defendants' motion which were for summary judgment dismissing the complaint insofar as asserted against the City and the defendant driver, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
AUSTIN, J.P., MALTESE, LASALLE and BRATHWAITE NELSON, JJ., concur.