MARTINEZ v. CITY OF ROCHESTER (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the amended order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this action seeking damages for personal injuries that she sustained when the vehicle in which she was a passenger (plaintiff's vehicle) collided with a Rochester Police Department patrol vehicle.  Plaintiff now appeals from an amended order that, inter alia, granted defendants' motion for summary judgment dismissing the complaint.  We affirm.

Pursuant to Vehicle and Traffic Law § 1104, the driver of an authorized emergency vehicle, including a “police vehicle” (§ 101), who is responding to a police call may “[p]roceed past a steady red signal ․, but only after slowing down as may be necessary for safe operation” (§ 1104[b][2];  see § 114–b;  see generally Kabir v. County of Monroe, 16 N.Y.3d 217, 230–231, 920 N.Y.S.2d 268, 945 N.E.2d 461 [2011] ).  An officer engaged in such privileged conduct cannot be held liable unless his or her conduct demonstrates a reckless disregard for the safety of others (see § 1104[e] ) or, in other words, “rises to the level of recklessness” (Saarinen v. Kerr, 84 N.Y.2d 494, 497, 620 N.Y.S.2d 297, 644 N.E.2d 988 [1994] ).  In order to establish recklessness, “there must be evidence that the actor has intentionally done an act of an 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” (Frezzell v. City of New York, 24 N.Y.3d 213, 217, 997 N.Y.S.2d 367, 21 N.E.3d 1028 [2014] [internal quotation marks omitted] ).

Here, in support of their motion, defendants established that defendant Jeremy Nash was responding to a police call with his emergency lights and sirens activated when he slowed his patrol vehicle and then entered the intersection against a red light, whereupon plaintiff's vehicle entered the intersection with a green light and struck the side of the patrol vehicle.  Thus, we conclude that defendants established as a matter of law that Nash's conduct did not rise to the level of reckless disregard for the safety of others (see generally Szczerbiak v. Pilat, 90 N.Y.2d 553, 556–557, 664 N.Y.S.2d 252, 686 N.E.2d 1346 [1997] ).  We also conclude that plaintiff failed to raise a triable issue of fact in opposition to the motion (see Williams v. Fassinger, 119 A.D.3d 1368, 1369, 989 N.Y.S.2d 561 [4th Dept. 2014], lv denied 24 N.Y.3d 912, 2014 WL 7180394 [2014];  Herod v. Mele, 62 A.D.3d 1269, 1270, 877 N.Y.S.2d 807 [4th Dept. 2009], lv denied 13 N.Y.3d 717, 2010 WL 154722 [2010];  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 [1980] ).  Contrary to plaintiff's contention, “[t]he officer's alleged violation of internal guidelines [of the Rochester Police Department] ․ failed to establish that his conduct was reckless” (Teitelbaum v. City of New York, 300 A.D.2d 649, 650, 752 N.Y.S.2d 705 [2d Dept. 2002], lv. denied 100 N.Y.2d 513, 767 N.Y.S.2d 394, 799 N.E.2d 617 [2003];  see generally Gilson v. Metropolitan Opera, 5 N.Y.3d 574, 577, 807 N.Y.S.2d 588, 841 N.E.2d 747 [2005] ).