MOCCASIN v. SUFFOLK COUNTY (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Kathy G. Bergmann, J.), dated December 30, 2022.  The order granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied.

In January 2019, at approximately 5:00 p.m., the plaintiff allegedly was injured while riding a skateboard when he was struck by a vehicle operated by the defendant Peter Degere, a police officer employed by the defendant Suffolk County Police Department (hereinafter SCPD).  Prior to the collision, Degere was traveling in the left southbound lane of Straight Path responding to a radio call of a woman going into labor with complications.  Between the left northbound lane and the left southbound lane of Straight Path, there was a center turn lane used by vehicles in both directions of traffic.  The collision occurred when Degere maneuvered his vehicle into the center turn lane to pass another vehicle and struck the plaintiff, who was traveling northbound in the center turn lane on the skateboard.

The plaintiff commenced this action against Suffolk County, SCPD, and Degere (hereinafter collectively the defendants) to recover damages for personal injuries he allegedly sustained in the accident.  The defendants moved for summary judgment dismissing the complaint.  In an order dated December 30, 2022, the Supreme Court granted the defendants’ motion.  The plaintiff appeals.  We reverse.

“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” (Thomas v. City of New York, 172 A.D.3d 1132, 1133, 100 N.Y.S.3d 318;  see Kabir v. County of Monroe, 16 N.Y.3d 217, 220, 920 N.Y.S.2d 268, 945 N.E.2d 461;  Pena v. County of Suffolk, 219 A.D.3d 946, 947, 195 N.Y.S.3d 516).  Vehicle and Traffic Law § 1104(b) allows an officer engaged in an emergency operation, inter alia, to “[e]xceed the maximum speed limit so long as [the officer] does not endanger life or property” and “[d]isregard regulations governing directions of movement or turning in specified directions” (id. § 1104[b][3], [4];  see Fuchs v. City of New York, 186 A.D.3d 459, 460, 126 N.Y.S.3d 652).  “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)” (Alonso v. Crest Transp. Serv., Inc., 226 A.D.3d 634, 635, 209 N.Y.S.3d 61 [alteration and internal quotation marks omitted];  see Kabir v. County of Monroe, 16 N.Y.3d at 220, 920 N.Y.S.2d 268, 945 N.E.2d 461).  “Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence” (Kabir v. County of Monroe, 16 N.Y.3d at 220, 920 N.Y.S.2d 268, 945 N.E.2d 461;  see De Corona v. Village of Val. Stream, 209 A.D.3d 837, 838, 176 N.Y.S.3d 319).

The “reckless disregard” standard demands more than a showing of a lack of “due care under the circumstances” (Saarinen v. Kerr, 84 N.Y.2d 494, 501, 620 N.Y.S.2d 297, 644 N.E.2d 988 [internal quotation marks omitted]).  “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” (id. [internal quotation marks omitted];  see Wonderly v. City of Poughkeepsie, 185 A.D.3d 632, 633, 125 N.Y.S.3d 734).  “This standard requires a showing of more than a momentary lapse in judgment” (Beverly v. County of Suffolk, 227 A.D.3d 652, 654, 210 N.Y.S.3d 448 [internal quotation marks omitted];  see Puntarich v. County of Suffolk, 47 A.D.3d 785, 786, 850 N.Y.S.2d 182).

Here, the defendants established that the reckless disregard standard of Vehicle and Traffic Law § 1104 was applicable to Degere's conduct because he was responding to a radio call of a woman going into labor with complications (see id. §§ 114–b, 1104[c]).  However, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint because their moving papers failed to eliminate all issues of material fact regarding whether Degere acted recklessly by either traveling at a high speed in the center turn lane in a school zone with poor lighting conditions or abruptly merging into the center turn lane without first looking to his left or activating his turn signal (see Kolvenbach v. Cunningham, 224 A.D.3d 826, 828, 205 N.Y.S.3d 459;  Bourdierd v. City of Yonkers, 213 A.D.3d 899, 901, 184 N.Y.S.3d 808;  Rodriguez–Garcia v. Southampton Police Dept., 185 A.D.3d 744, 745, 124 N.Y.S.3d 870).

Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiff to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint.

In light of the foregoing, we need not reach the plaintiff's remaining contentions.

BARROS, J.P., WARHIT, VOUTSINAS and WAN, JJ., concur.