PUNTARICH v. COUNTY OF SUFFOLK (2008)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated July 24, 2006, which denied their 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 granted.

 The manner in which a police officer operates his or her vehicle in an emergency situation may not form the basis for civil liability to an injured third party unless the officer acted in reckless disregard for the safety of others (see Vehicle and Traffic Law § 1104[a], [b], [e];  Shephard v. City of New York, 39 A.D.3d 842, 835 N.Y.S.2d 297, lv. dismissed 9 N.Y.3d 816, 849 N.Y.S.2d 32, 879 N.E.2d 172;  DeLuca v. Blanco, 31 A.D.3d 600, 601, 819 N.Y.S.2d 86;  Badalamenti v. City of New York, 30 A.D.3d 452, 817 N.Y.S.2d 134).  “The ‘reckless disregard’ standard requires proof that the officer intentionally committed 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” (Badalamenti v. City of New York, 30 A.D.3d at 453, 817 N.Y.S.2d 134;  see Saarinen v. Kerr, 84 N.Y.2d 494, 501, 620 N.Y.S.2d 297, 644 N.E.2d 988).   This standard requires a showing of more than a momentary lapse in judgment (see Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346;  Saarinen v. Kerr, 84 N.Y.2d at 502, 620 N.Y.S.2d 297, 644 N.E.2d 988;  Salzano v. Korba, 296 A.D.2d 393, 394, 745 N.Y.S.2d 56).

 Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the police officer operating the vehicle which struck the plaintiff was engaged in an emergency operation at the time of the collision (see Vehicle and Traffic Law § 114-b), and that the officer's conduct did not rise to the level of reckless disregard for the safety of others (see Salzano v. Korba, 296 A.D.2d at 395, 745 N.Y.S.2d 56;  Naue v. Higgins, 242 A.D.2d 567, 568, 662 N.Y.S.2d 527;  cf. Badalamenti v. City of New York, 30 A.D.3d at 453, 817 N.Y.S.2d 134;  Gordon v. County of Nassau, 261 A.D.2d 359, 689 N.Y.S.2d 192).   In opposition, the plaintiff failed to raise a triable issue of fact (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.