The following papers numbered 1 to 3 were read and considered on the defendant’s motion for summary judgment Papers Numbered Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed Affirmation/Affidavits in Opposition 2 Summons and Complaint Replying Affidavits 3 Filed Papers Exhibits Memorandum of Law DECISION AND ORDER On July 25, 2018 at 11:00 P.M. Yonkers Police Officer Brendan Moore and his partner Robert McDonough were engaged in a traffic violation stop when they received a radio call for service involving a possible burglary. According to Officer Moore, he issued a warning to the stopped motorist and returned to his vehicle. After checking his rearview and passenger mirrors he stated he observed a vehicle approximately five car lengths behind him. He estimated approximately fifteen seconds later he pulled away from where he was parked at a rate from between 5-10 miles per hour with his overhead lights engaged when his vehicle collided with the vehicle driving by Edwin Antonio Hernandez Gonzalez. The collision caused damage to both vehicles however Mr. Gonzalez’ was able to drive his vehicle following the accident. Plaintiffs commenced the above-entitled action against Officer Moore and the City of Yonkers seeking to recover the sum of $9,370.54 for damage allegedly incurred to Mr. Gonzalez’ vehicle. Defendants now move for summary judgment pursuant to CPLR §3212, on the grounds that Defendants are entitled to qualified immunity as their actions were taken during the emergency operation of their vehicle. Defendants argued that Officer Moore’s operation of his patrol vehicle did not rise to the level of “reckless disregard” necessary for liability under Vehicle and Traffic Law §1104. In support of the motion, Defendants annexed insurance claim information, accident reports and §50-h testimony of Officer Moore and Mr. Gonzalez. Drivers of police and emergency vehicles enjoy qualified immunity for actions taken during an emergency operation of such a vehicle. VTL §1104, see, Chesney v. City of Yonkers, 167 A.D. 3d 567, 88 N.Y.S. 3d 507 [2d Dept. 2018]. A court may only find civil liability if the officer acted in reckless disregard upon a showing of evidence that “the actor has intentionally done an act of unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome.” (Saarinen v. Kerr, 84 N.Y.2d 494 (1994) citing Prosser and Keeton, Torts §34, at 213 (5th Ed) and Restatement (Second) Torts §500), otherwise the standard of care is ordinary negligence. Kabir v. County of Monroe, 16 N.Y. 3d 217; 920 N.Y.S. 2d 268 [2011]. The Legislature recognized that although these privileges may increase the risks to other drivers and pedestrians, emergency personnel “should be afforded a qualified privilege to disregard [certain traffic] laws where necessary to carry out their important responsibilities.” Saarinen, 84 N.Y.2d at 502. It is undisputed that Officer Moore was operating an authorized emergency vehicle1, that the operation was privileged and that the heightened reckless disregard standard of Vehicle and Traffic Law 1104[e] applies. Plaintiff challenged the classification of Officer Moore’s operation of the vehicle as an emergency operation and argued that he drove with reckless disregard. Plaintiff alleged that Officer Moore took no discernable action to warn Mr. Gonzalez that he was about to pull his vehicle from his parking space. Plaintiff points to Officer Moore’s testimony that he could not recall whether he engaged his siren and that Mr. Gonzalez testified that neither Officer Moore’s lights nor sirens were engaged at the time of the collision. Under the provisions of VTL §1104[c], police officers are exempt from the lights and sirens requirements applicable to other emergency vehicles. See, Frezzell v. City of New York, 24 N.Y.3d 213, 218 [2014]. Notwithstanding the foregoing, it is irrelevant to the issue of recklessness. See, Green v. Zarella, 152 AD3d 1162 (1st Dept. 2017) (the police officer had no duty to engage the sirens or lights, and her failure to do so was not evidence of recklessness); Deno v. Belliard, 165 A.D.3d 602, 86 N.Y.S. 3d 63 [1st Dept 2018] (whether the police car’s sirens were activated at the time of the accident is not material since a police vehicle performing an emergency operation is not required to activate either its lights or sirens in order to be entitled to the statutory privilege of passing through a red light); Lewis v. City of New York, 155 A.D.3d 441, 63 N.Y.S. 3d 231 [1st Dept 2017] (the fact that there is a question as to whether the police vehicle’s lights and sirens were on is not material because the police car was not required to activate either in order to be entitled to the statutory privilege of passing through a red light); Jones v. Albany County Sheriff’s Dept., 123 A.D.3d 1331, 999 N.Y.S.2d 260 [3d Dept 2014] (an authorized emergency police vehicle is exempt from the requirements applicable to other emergency vehicles to utilize sirens and lights); Flynn v. Sambuca Taxi LLC, 123 A.D. 3d 501, 999 N.Y.S. 2d 27 [1st Dept 2014] (issues of fact as to whether a siren was activated are not material, as police vehicles are not required to activate either device when passing through a red light); Nikolov v. Town of Cheektowaga, 96 A.D. 3d 1372, 946 N.Y.S. 2d 734 [4th Dept 2012] (even assuming arguendo that the police officer did not engage the siren or the lights, that cannot establish a predicate for liability inasmuch as the use of lights and sirens is not required to obtain the benefits of VTL §1104). Plaintiff further contends that as Officer Moore was not in pursuit of any suspects at the time of the occurrence and acknowledged that his unit was not being raised by the call, there was no emergency operation. Contrary to Plaintiff’s arguments, an emergency operation includes assisting another officer. VTL §114-b defines an emergency operation as “the operation…of an authorized emergency vehicle, when such vehicle is engaged in…responding to, or working or assisting at the scene of an accident, police call, alarm or fire…or other emergency.” VTL §1104[b] permits the driver of an emergency vehicle, during an emergency operation to violate certain rules of the road which include stopping, standing or parking. See, Frezzell v. City of New York, 24 N.Y. 3d 213, 21 N.E.3d 1028 [2014]. The Court of Appeals stated “the legislative determination [is] that a police dispatch call is an ‘emergency operation.’ Simply stated, there is no legislative intent to vary the definition of ‘emergency operation’ based on who responds. As such it is irrelevant that the defendants were responding as ‘backup’” Criscione v. City of New York, 97 N.Y. 2d 152, 736 N.Y.S.2d 656 [2001]. The response to the call constitutes emergency operation pursuant to VTL §114-b. CPLR §3212 provides that “a motion for summary judgment shall be supported by affidavits, by a copy of the pleadings and by other available proof such as depositions and written admissions.” See also, GTF Mktg v. Colonial Aluminum Sales, 66 N.Y. 2d 965, 967 498 N.Y.S.2d 786 [1985]; JMD Holding Corp. v, Congress Fin. Corp., 4 N.Y.3d 373, 795 N.Y.S.2d 502 [2005]. “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.” Zuckerman v. City of New York, 49 N.Y. 2d 557, 562 [1980]. The burden then shifts to the non-moving party “to establish the existence of material issues of fact which require a trial of the action.” Alvarez v. Prospect Hosp. 68 N.Y. 2d 320, 324 [1986]. The Court must afford the non-movant the benefit of every favorable inference that can be drawn from the pleadings and the proof. See, Meyers v. Fir Cab Corp., 64 N.Y.2d 806, 808, 486 N.Y.S. 2d 922 (1985). If an issue of fact is “only arguable”, the motion must be denied. Yelder v. Walters, 64 A.D.3d 762, 767, 2009 N.Y. Slip. Op. 06012 (2d Dept., 2009); see also, Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S. 2d 131 [1974]; Mosheyev v. Pilevsky, 283 A.D.2d 469, 2001 N.Y. Slip. Op. 04275 (2d Dept., 2001). The deposition testimony of Officer Moore established that at the time of the accident, he was in a marked police car engaged in a traffic violation stop. Defendants then received a radio call for a potential burglary. Officer Moore stated he checked his mirrors and proceeded out of his parking space at a speed between 5 to 10 miles per hour. This testimony established that Officer Moore’s actions were not done “in disregard of a known or obvious risk that was so great as to make it highly probable “that harm would result the Court may not conclude based on the facts before it that Officer Moore acted “with conscious indifference to the outcome.” Saarinen, 84 N.Y. 2d at 501. The Court concludes, on the record before it, that Defendants met their burden of establishing that Officer Moore’s conduct did not amount to reckless disregard of a highly probably risk of harm “with conscious indifference to the outcome.” Id. Defendants established Officer Moore was operating an authorized emergency vehicle (VTL §101) during a defined emergency operation (VTL §114-b) at a rate of between 5 and 10 miles per hour. Plaintiff’s arguments pertaining to the lights and sirens are insufficient to create a material question of fact considering VTL §1104[c] which statutorily exempts police vehicles from the requirement for the emission of audible signals while an emergency vehicle is in motion. There are no material questions of fact as to whether Officer Moore was speeding, driving in poor road or traffic conditions, was inattentive or proceeded without the caution or care for the safety of motorist and bystanders, the court may not conclude that he acted with “conscious indifference to the outcome” Saarinen, 84 N.Y.2d at 501. Plaintiff failed to establish Defendant’s actions were reckless, which for the purposes of VTL §1104 has repeatedly been held to require an intentional act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probably that harm would follow; and did not do so with conscious indifference to the outcome. Defendants’ motion for summary judgment is granted. The above-entitled matter is dismissed. Dated and Entered: October 1, 2021
