DE CORONA v. VILLAGE OF VALLEY STREAM (2022)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Jack L. Libert, J.), entered January 13, 2020.  The order granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In July 2017, a vehicle operated by the plaintiff collided with a vehicle operated by the defendant James R. Ervolino and owned by the defendant Village of Valley Stream.  The accident occurred at the intersection of Merrick Road and Rockaway Parkway.  At the time of the accident, Ervolino was a chief of the Valley Stream Fire Department and, according to the defendants, was responding to an emergency fire alarm call regarding a brush fire.

The plaintiff commenced this action against the defendants to recover damages for personal injuries.  The defendants moved for summary judgment dismissing the complaint, arguing that Ervolino was responding to an emergency call at the time of the accident and that his operation of the emergency vehicle did not rise to the level of reckless disregard for the safety of others, as required for liability pursuant to Vehicle and Traffic Law § 1104.  The Supreme Court granted the motion, and the plaintiff 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 (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” (id. at 501, 620 N.Y.S.2d 297, 644 N.E.2d 988, quoting Prosser & Keeton, Torts § 34 at 213 [5th ed 1984];  see Frezzell v. City of New York, 24 N.Y.3d 213, 217, 997 N.Y.S.2d 367, 21 N.E.3d 1028;  Rodriguez–Garcia v. Southampton Police Dept., 185 A.D.3d 744, 745, 124 N.Y.S.3d 870;  Thomas v. City of New York, 172 A.D.3d 1132, 1133, 100 N.Y.S.3d 318).

“[T]he 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).  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 217, 220, 920 N.Y.S.2d 268, 945 N.E.2d 461;  see Cooney v. Port Chester Police Dept., 203 A.D.3d 799, 160 N.Y.S.3d 885;  Anderson v. Suffolk County Police Dept., 181 A.D.3d 765, 766, 121 N.Y.S.3d 304).

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the reckless disregard standard of Vehicle and Traffic Law § 1104 was applicable to Ervolino's conduct (see Vehicle and Traffic Law §§ 101, 114–b, 1104[b];  Kabir v. County of Monroe, 16 N.Y.3d at 220, 920 N.Y.S.2d 268, 945 N.E.2d 461;  Saarinen v. Kerr, 84 N.Y.2d at 499, 620 N.Y.S.2d 297, 644 N.E.2d 988;  Thomas v. City of New York, 172 A.D.3d at 1133, 100 N.Y.S.3d 318), and that his conduct did not rise to the level of reckless disregard for the safety of others (see Frezzell v. City of New York, 24 N.Y.3d at 217–218, 997 N.Y.S.2d 367, 21 N.E.3d 1028;  Saarinen v. Kerr, 84 N.Y.2d at 503, 620 N.Y.S.2d 297, 644 N.E.2d 988;  Thomas v. City of New York, 172 A.D.3d at 1133, 100 N.Y.S.3d 318).  In opposition, the plaintiff failed to raise a triable issue of fact (see 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 properly granted the defendants’ motion for summary judgment dismissing the complaint.

BRATHWAITE NELSON, J.P., MILLER, GENOVESI and WARHIT, JJ., concur.