MATTERA v. AVIS RENT CAR SYSTEM INC (1997)

In related actions to recover damages for personal injuries, the defendants City of New York and Edward Snow in Action No. 1 and the defendants City of New York, New York City Police Department, and Edward Snow in Action No. 2 appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated April 8, 1996, as granted the separate motions of the plaintiff in Action No. 1, Edward Mattera, and the plaintiff in Action No. 2, Jeremiah Kelleher, for summary judgment against them on the issue of liability.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

Jeremiah Kelleher, a New York City police detective, was a passenger in a car driven by another detective, Edward Snow, responding to the scene of a buy-and-bust operation where a suspect was being held.   Snow made a left turn and was struck by an oncoming vehicle driven by Edward Mattera.   The detectives' car was unmarked and had no flashing lights or sirens operating.

The Supreme Court properly concluded that Snow's conduct in making a left turn in front of Mattera's oncoming vehicle was negligent as a matter of law (see, Vehicle and Traffic Law § 1141;  Lester v. Jolicofur, 120 A.D.2d 574, 502 N.Y.S.2d 61;  Kiernan v. Edwards, 97 A.D.2d 750, 468 N.Y.S.2d 381;  see also, Nunziata v. Birchell, 238 A.D.2d 555, 656 N.Y.S.2d 383).   On these facts, the privilege afforded to operators of authorized emergency vehicles engaged in an emergency operation pursuant to Vehicle and Traffic Law § 1104 is inapplicable (cf., Williams v. City of New York, 240 A.D.2d 734, 659 N.Y.S.2d 302);  this was not such an emergency operation (cf., Mulligan v. City of New York, 245 A.D.2d 277, 664 N.Y.S.2d 484).

The appellants' remaining contentions are without merit.

MEMORANDUM BY THE COURT.