SCOLPINI v. Joseph Falcone, etc., appellant. (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Joseph Falcone appeals from an order of the Supreme Court, Westchester County (William J. Giacomo, J.), dated November 3, 2023.  The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Joseph Falcone for summary judgment dismissing the complaint insofar as asserted against him is granted.

On June 7, 2020, the plaintiff allegedly was injured when her vehicle collided with a police car operated by the defendant John Falcone (hereinafter the defendant), a police officer employed by the defendant Town of Greenburgh Police Department.  At the time of the accident, the defendant, who was responding to a dispatch call, was traveling east attempting to cross an intersection against a red traffic signal when the plaintiff's vehicle, traveling north with a green traffic signal, struck the defendant's vehicle.  In November 2021, the plaintiff commenced this action against, among others, the defendant to recover damages for personal injuries.  Thereafter, the defendant moved for summary judgment dismissing the complaint insofar as asserted against him on the grounds that he was not at fault in the happening of the accident and that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident.  In an order dated November 3, 2023, the Supreme Court denied the motion.  The defendant appeals.

“Vehicle and Traffic Law § 1104 qualifiedly exempts drivers of emergency vehicles from certain traffic laws when they are involved in an emergency operation, and precludes the imposition of liability for otherwise privileged conduct except where the driver acted in reckless disregard for the safety of others” (Haniff v. City of New York, 233 A.D.3d 948, 949, 222 N.Y.S.3d 648;  see Saarinen v. Kerr, 84 N.Y.2d 494, 497, 620 N.Y.S.2d 297, 644 N.E.2d 988).  “This standard demands more than a showing of a lack of due care under the circumstances—the showing typically associated with ordinary negligence claims.  It requires 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” (Saarinen v. Kerr, 84 N.Y.2d at 501, 620 N.Y.S.2d 297, 644 N.E.2d 988 [internal quotation marks omitted];  see Haniff v. City of New York, 233 A.D.3d at 949, 222 N.Y.S.3d 648).

Here, the defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that he was involved in an emergency operation at the time of the accident and that his conduct did not rise to the level of reckless disregard for the safety of others (see Haniff v. City of New York, 233 A.D.3d at 949, 222 N.Y.S.3d 648;  Daniels v. City of New York, 28 A.D.3d 415, 416, 813 N.Y.S.2d 164).  The defendant submitted, inter alia, a transcript of his deposition testimony and the dashcam footage of the accident, which demonstrated that as the defendant approached the intersection where the accident occurred, he slowed to a speed of 5 to 10 miles per hour, activated the lights on his police vehicle, and sounded the vehicle's siren multiple times.  In opposition to the defendant's prima facie showing, the plaintiff failed to raise a triable issue of fact.

In light of our determination, we need not reach the parties’ remaining contentions.

Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.

BRATHWAITE NELSON, J.P., WOOTEN, WARHIT and VENTURA, JJ., concur.