Opinion
2014-07-3
April M. WILLIAMS, Plaintiff–Respondent–Appellant, v. Charles A. FASSINGER and City of Syracuse, Defendants–Appellants–Respondents. (Appeal No. 1.).
Mary Anne Doherty, Corporation Counsel, Syracuse (Ann M. Alexander of Counsel), for Defendants–Appellants–Respondents. Greene & Reid, PLLC, Syracuse (Eugene W. Lane of Counsel), for Plaintiff–Respondent–Appellant.
Mary Anne Doherty, Corporation Counsel, Syracuse (Ann M. Alexander of Counsel), for Defendants–Appellants–Respondents. Greene & Reid, PLLC, Syracuse (Eugene W. Lane of Counsel), for Plaintiff–Respondent–Appellant.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, and VALENTINO, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries she sustained when her vehicle collided at an intersection with a police vehicle owned by defendant City of Syracuse (City) and operated by defendant Charles A. Fassinger, a police officer employed by the City (hereafter, defendant officer). Plaintiff thereafter moved for partial summary judgment on liability, i.e., negligence and serious injury, and defendants cross-moved for summary judgment dismissing the complaint on the ground that they are afforded qualified immunity by Vehicle and Traffic Law § 1104(e). By the order in appeal No. 1, Supreme Court denied the motion and the cross motion. Plaintiff moved, and the City cross-moved, for leave to reargue. By the order in appeal No. 2, the court granted that part of plaintiff's motion seeking summary judgment on the issue of serious injury, apparently on stipulation of the parties, but otherwise denied the motion and further denied the City's cross motion for leave to reargue. We note at the outset that we dismiss the City's appeal from the order in appeal No. 2 inasmuch as the order denying the cross motion for leave to reargue is not appealable ( see Empire Ins. Co. v. Food City, 167 A.D.2d 983, 984, 562 N.Y.S.2d 5).
With respect to appeal No. 1, we agree with defendants that the applicable standard of liability is reckless disregard for the safety of others as set forth in Vehicle and Traffic Law § 1104(e) ( see generally Criscione v. City of New York, 97 N.Y.2d 152, 157–158, 736 N.Y.S.2d 656, 762 N.E.2d 342). At the time of the collision, defendant officer was responding to a police call and was therefore operating an authorized emergency vehicle while involved in an emergency operation ( see §§ 101, 114–b; Criscione, 97 N.Y.2d at 157–158, 736 N.Y.S.2d 656, 762 N.E.2d 342;Hughes v. Chiera, 4 A.D.3d 872, 873, 772 N.Y.S.2d 772). We further conclude that, by failing to yield the right of way while attempting to execute a left turn at a green light, defendant officer was “engage[d] 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), i.e., he was “exercis[ing one of] the privileges set forth in” the statute at the time of the accident (§ 1104[a]; see Kabir, 16 N.Y.3d at 223, 920 N.Y.S.2d 268, 945 N.E.2d 461;Dodds v. Town of Hamburg, 117 A.D.3d 1428, ––––, 984 N.Y.S.2d 752).
We further conclude that 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), and that plaintiff failed to raise a triable issue of fact in opposition to the cross motion ( see Herod v. Mele, 62 A.D.3d 1269, 1270, 877 N.Y.S.2d 807,lv. denied13 N.Y.3d 717, 2010 WL 154722;Hughes, 4 A.D.3d at 873, 772 N.Y.S.2d 772; see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Defendant officer testified that, as he was approaching the intersection in a southbound direction, the only traffic he observed was a line of northbound vehicles waiting to turn left. When he reached the intersection, he stopped for a “few seconds” to ensure that the intersection was clear. Defendant officer testified that he could see a distance of approximately three car lengths in the right northbound lane and that he did not see any traffic in that lane when he started his turn. He then “cre[pt] into the intersection, making sure ... nobody was passing on the right of the vehicles stopped to make a left.” Plaintiff similarly testified that there was a line of cars in the northbound lane preparing to turn left, that she “veered to the right” around the line of cars in order to proceed straight through the intersection, and that the accident occurred in the intersection. We thus conclude that, “[g]iven the evidence of precautions taken by [defendant officer] before he attempted his [left] turn, ... 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, quoting Saarinen v. Kerr, 84 N.Y.2d 494, 501, 620 N.Y.S.2d 297, 644 N.E.2d 988;see Dodds, 117 A.D.3d at ––––, 984 N.Y.S.2d at 754). We therefore modify the order in appeal No. 1 by granting defendants' cross motion for summary judgment dismissing the complaint.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting defendants' cross motion and dismissing the complaint and as modified the order is affirmed without costs.