Opinion
1177 CA 21-00611
03-18-2022
Frederick N. FARWELL, Plaintiff-Respondent, v. CITY OF SYRACUSE, Syracuse Police Department and Gregory J. DiPuccio, Defendants-Appellants.
GOLDBERG SEGALLA LLP, SYRACUSE (AARON M. SCHIFFRIK OF COUNSEL), FOR DEFENDANTS-APPELLANTS. ROBERT E. LAHM, PLLC, SYRACUSE (ROBERT E. LAHM OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
GOLDBERG SEGALLA LLP, SYRACUSE (AARON M. SCHIFFRIK OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
ROBERT E. LAHM, PLLC, SYRACUSE (ROBERT E. LAHM OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when the bicycle he was riding collided at an intersection with a police vehicle operated by defendant Gregory J. DiPuccio (defendant officer), a police officer employed by defendant Syracuse Police Department who was responding to an emergency call. Defendants thereafter moved for summary judgment dismissing the complaint on the ground that defendant officer did not act with "reckless disregard" for the safety of others. Supreme Court denied the motion, and we affirm.
We conclude that, at the time of the collision, defendant officer was operating an authorized emergency vehicle while involved in an emergency operation (see Vehicle and Traffic Law §§ 101, 114-b ). Thus, the standard of liability pursuant to Vehicle and Traffic Law § 1104 (e), i.e., reckless disregard for the safety of others, rather than that of ordinary negligence, applies to his actions (see Criscione v. City of New York , 97 N.Y.2d 152, 157-158, 736 N.Y.S.2d 656, 762 N.E.2d 342 [2001] ; Nikolov v. Town of Cheektowaga , 96 A.D.3d 1372, 1373, 946 N.Y.S.2d 734 [4th Dept. 2012] ). Although defendants established as a matter of law that defendant officer's conduct did not rise to the level of reckless disregard for the safety of others (see Szczerbiak v. Pilat , 90 N.Y.2d 553, 556-557, 664 N.Y.S.2d 252, 686 N.E.2d 1346 [1997] ), plaintiff raised a triable issue of fact with respect thereto (see Coston v. City of Buffalo , 162 A.D.3d 1492, 1493, 77 N.Y.S.3d 817 [4th Dept. 2018] ; see generally Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).