McANDREWS v. CITY OF NEW YORK (2003)

Court of Appeals of New York.

William McANDREWS et al., Respondents, v. CITY OF NEW YORK et al., Appellants.

Decided: September 16, 2003

Michael A. Cardozo, Corporation Counsel, New York City (Ellen Ravitch of counsel), for appellants. Kuharski & Levitz, LLP, New York City (Lonny R. Levitz of counsel), for respondents.

OPINION OF THE COURT

The order of the Appellate Division should be reversed, with costs, and the matter remitted for a new trial.

Despite defendant's timely request, the trial court did not adequately charge the jury concerning the standard of conduct actionable under Vehicle and Traffic Law § 1104(e). The statutory recklessness standard is exacting (see Saarinen v. Kerr, 84 N.Y.2d 494, 501-502, 620 N.Y.S.2d 297, 644 N.E.2d 988 [1994] ) and the court's failure to define that standard for the jury was not harmless error under the circumstances of this case.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.

MEMORANDUM.

Chief Judge KAYE and Judges SMITH, CIPARICK, ROSENBLATT, GRAFFEO and READ concur in memorandum.

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