JAYNE DODDS AS EXECUTRIX OF THE ESTATE OF LEONARD BORYSZAK DECEASED AND JAYNE DODDS AS EXECUTRIX OF THE ESTATE OF ELEANORE BORYSZAK DECEASED PLAINTIFF RESPONDENT APPELLANT v. TOWN OF HAMBURG AND JOHN BLUMAN DEFENDANTS APPELLANTS RESPONDENTS (2014)

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Erie County (Timothy J. Walker, A.J.), entered May 3, 2012.   The order denied the motion of defendants for summary judgment and denied the cross motion of Leonard P. Boryszak and Eleanore C. Boryszak for partial summary judgment.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting defendants' motion and dismissing the complaint and as modified the order is affirmed without costs.

We agree with defendants that Supreme Court erred in denying their motion for summary judgment, and we therefore modify the order accordingly.   At the time of the accident, Bluman was operating an “authorized emergency vehicle” (Vehicle and Traffic Law § 1104[a] ) and was engaged in an emergency operation by virtue of the fact that he was attempting a U-turn in order to “pursu[e] an actual or suspected violator of the law” (§ 114–b).  As the Court of Appeals recognized in Kabir v. County of Monroe (16 NY3d 217, 220), “the reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b).  Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.”   We conclude that, by attempting to execute a U-turn, Bluman's conduct was exempted from the rules of the road by section 1104(b)(4).   As a result, his conduct is governed by the reckless disregard standard of care in section 1104(e).

It is well settled that a “ ‘momentary judgment lapse’ does not alone rise to the level of recklessness required of the driver of an emergency vehicle in order for liability to attach” (Szczerbiak v. Pilat, 90 N.Y.2d 553, 557).   Here, Bluman acted under the mistaken belief that the other southbound vehicles were sufficiently behind him and that it was, at that moment, safe to execute a U-turn.   This “constituted a momentary lapse in judgment not rising to the level of ‘reckless disregard for the safety of others' “ (Green v. State of New York, 71 AD3d 1310, 1312, quoting Vehicle and Traffic Law § 1104[e] ).   “Given the evidence of precautions taken by [Bluman] before he attempted his U-turn, we [conclude] that he did not act with ‘conscious indifference’ to the consequences of his actions” (id.).

Frances E. Cafarell

Clerk of the Court