MURPHY v. GALLEGOS (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Patria Frias–Colón, J.), dated December 3, 2024.  The order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

This action arises from a motor vehicle accident that occurred at approximately 6:00 a.m. on May 29, 2016, on White Plains Road in the Bronx.  White Plains Road is a two-way street with one lane of traffic in each direction, separated by double yellow lines, and a parking lane on each side of the street.  The plaintiff's vehicle was traveling straight in the southbound lane of White Plains Road when it collided with the front passenger side of the defendants' marked police vehicle.  The defendant driver was attempting to make a U-turn from the southbound parking lane into the northbound traveling lane to respond to a radio call when the collision occurred.

The plaintiff commenced this action against the defendants, inter alia, to recover damages for personal injuries that she alleged she sustained as a result of the accident.  The defendants moved for summary judgment dismissing the complaint, contending that the defendant driver did not operate the defendants' vehicle with reckless disregard for the safety of others.  In an order dated December 3, 2024, the Supreme Court granted the defendants' motion.  The plaintiff appeals.

“[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 Cable v. State of New York, 182 A.D.3d 569, 570–571, 120 N.Y.S.3d 822).  “Conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b) includes disregarding regulations governing the direction of movement or turning in specified directions” (Cable v. State of New York, 182 A.D.3d at 571, 120 N.Y.S.3d 822 [internal quotation marks omitted];  see Vehicle and Traffic Law § 1104[b][4] ).  The reckless disregard standard “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 494, 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;  Thomas v. City of New York, 172 A.D.3d 1132, 1133, 100 N.Y.S.3d 318).  “A momentary lapse of judgment is insufficient to establish ‘the level of recklessness required of the driver of an emergency vehicle in order for liability to attach’ ” (Salzano v. Korba, 296 A.D.2d 393, 394, 745 N.Y.S.2d 56, quoting Szczerbiak v. Pilat, 90 N.Y.2d 553, 557, 664 N.Y.S.2d 252, 686 N.E.2d 1346;  see Saarinen v. Kerr, 84 N.Y.2d at 502, 620 N.Y.S.2d 297, 644 N.E.2d 988).

Here, the defendants established, prima facie, that the defendant driver did not act with reckless disregard for the safety of others.  In support of their motion, the defendants submitted, among other things, transcripts of the deposition testimony of the plaintiff and the defendant driver.  The record reflects that at the time of the accident there was daylight and only light traffic.  The defendants' vehicle was parked in the southbound parking lane on White Plains Road, and there was a vehicle double parked next to the defendants' vehicle.  The front of the double-parked vehicle was aligned with the rear driver's side door of the defendants' vehicle.  The defendant driver received a radio call to respond to a physical fight that was in progress, and he planned to make a U-turn on White Plains Road to reach the location of the fight.  The record demonstrates that the defendant driver was slowly pulling out in front of the double-parked vehicle to make the U-turn, and although he looked for oncoming traffic, he failed to see the plaintiff's vehicle in time to avoid the impact.  Specifically, the defendant driver testified at his deposition that he “had to creep up a little slowly” and he “kept looking,” and that the accident occurred as he was “peeking out.”  From the time the defendant driver began to pull out of the parking lane until the time of the impact, the highest rate of speed he achieved was five miles per hour.

Contrary to our dissenting colleagues, we conclude that, even if the defendant driver's conduct in making a U-turn from the parking lane constituted a momentary lapse in judgment, the defendants established, prima facie, that it did not rise to the level of reckless disregard for the safety of others (see Szczerbiak v. Pilat, 90 N.Y.2d at 557, 664 N.Y.S.2d 252, 686 N.E.2d 1346;  Beverly v. County of Suffolk, 227 A.D.3d 652, 654, 210 N.Y.S.3d 448;  Proce v. Town of Stony Point, 185 A.D.3d 975, 978, 127 N.Y.S.3d 541).  The defendants' submissions demonstrate that the defendant driver proceeded slowly and with caution (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;  Flood v. City of Syracuse, 166 A.D.3d 1573, 1573–1574, 88 N.Y.S.3d 740;  cf.  Moccasin v. Suffolk County, 246 A.D.3d 1062, 249 N.Y.S.3d 617).  The deposition testimony of the plaintiff, who did not see the defendants' vehicle prior to the impact, did not create a triable issue of fact as to the defendant driver's conduct.

Contrary to the plaintiff's contention, the evidence that the defendant driver did not activate his horn or siren did not create a triable issue of fact as to whether he acted with reckless disregard for the safety of others.  Similarly, the conflicting evidence as to whether the defendant driver activated his turret lights did not create a triable issue of fact.  Vehicle and Traffic Law § 1104(c) explicitly exempts police vehicles from the requirement to activate audible signals and lights while an emergency vehicle is in motion (see Granath v. Monroe County, ––– N.Y.3d ––––, ––––,––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2026 N.Y. Slip Op. 01586, *4–5, 2026 WL 769490 [2026];  Frezzell v. City of New York, 24 N.Y.3d at 218, 997 N.Y.S.2d 367, 21 N.E.3d 1028;  Chiu–Yu v. Chin, 233 A.D.3d 507, 509, 221 N.Y.S.3d 534), and here the record reflects that the defendant driver took precautionary measures in order to avoid causing harm to others (cf.  Bourdierd v. City of Yonkers, 213 A.D.3d 899, 901, 184 N.Y.S.3d 808).

In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff's remaining contention is without merit.

Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

In my view, there are triable issues of fact as to whether the defendant David Gallegos, a police officer with the defendant City of New York, operated his police vehicle with reckless disregard for the safety of others when he collided with the plaintiff's vehicle while making a U-turn.  Therefore, I would reverse the order of the Supreme Court and deny the defendants' motion for summary judgment dismissing the complaint.

The defendants' submissions demonstrate that the underlying accident occurred on the southbound side of White Plains Road in the Bronx on May 29, 2016.  White Plains Road is a two-way street with one travel lane and one parking lane in each direction.  The travel lane on the southbound side is wide enough for two vehicles to travel side-by-side.  Gallegos, who had been working a night shift since 11:15 p.m. the previous evening, was sitting in his parked patrol vehicle in the southbound parking lane of the road at approximately 6:00 a.m. when he received a radio run of a fight taking place at a nearby intersection located approximately 10 car lengths behind where he was parked.  Gallegos testified at his deposition that he intended to make a U-turn into the northbound travel lane of White Plains Road so that he could respond to the fight.  However, a sport utility vehicle was double parked next to Gallegos's vehicle in the southbound travel lane of White Plains Road such that the front of the double-parked vehicle was aligned with the rear driver's side door of Gallegos's vehicle, effectively boxing Gallegos in the parking lane and presumably blocking his view of the southbound travel lane.  Rather than pull forward into the travel lane in front of the double-parked vehicle and then make a U-turn from the southbound travel lane of White Plains Road into the northbound travel lane, Gallegos instead began his U-turn from the parking lane across the front of the double-parked vehicle.  Gallegos explained that as he “started turning [his] wheel,” he turned on his vehicle's turret lights and “creep[ed] up” across the front of the double-parked vehicle.  As Gallegos “peek[ed] out,” the front driver's side of his vehicle was struck by the front passenger side of the plaintiff's vehicle, which was traveling straight in the southbound travel lane of White Plains Road next to the double-parked vehicle.  Gallegos explained that he was looking “[t]o the back of [his] vehicle” in the seconds preceding the collision, and to his “left side rear view” at the time of impact.  Both Gallegos and the plaintiff testified at their depositions that they did not see the other's vehicle prior to the collision, and the plaintiff additionally testified that no lights were activated on Gallegos's vehicle.

“Vehicle and Traffic Law § 1104 grants ‘the driver of an authorized emergency vehicle when involved in an emergency operation’ a certain set of ‘special driving privileges’ ” (Granath v. Monroe County, ––– N.Y.3d ––––, ––––,––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2026 N.Y. Slip Op. 01586, *2, 2026 WL 769490 [2026], quoting Frezzell v. City of New York, 24 N.Y.3d at 213, 217, 997 N.Y.S.2d 367, 21 N.E.3d 1028;  see Vehicle and Traffic Law § 1104[a];  Moccasin v. Suffolk County, 246 A.D.3d at 1062, 249 N.Y.S.3d 617).  Those privileges include “[d]isregard[ing] regulations governing directions of movement or turning in specified directions” (Vehicle and Traffic Law § 1104[b][4] ).  When exercising these privileges, however, “drivers are not ‘protect[ed] ․ from the consequences of [their] reckless disregard for the safety of others’ ” (Granath v. Monroe County, ––– N.Y.3d at ––––,––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2026 N.Y. Slip Op., *3, 2026 WL 769490, quoting Vehicle and Traffic Law § 1104[e] ).  “The ‘reckless disregard’ standard demands more than a showing of a lack of ‘due care under the circumstances’ ” (Moccasin v. Suffolk County, 246 A.D.3d at 1063, 249 N.Y.S.3d 617, quoting Saarinen v. Kerr, 84 N.Y.2d at 494, 501, 620 N.Y.S.2d 297, 644 N.E.2d 988;  see Frezzell v. City of New York, 24 N.Y.3d at 217, 997 N.Y.S.2d 367, 21 N.E.3d 1028).  “ ‘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’ ” (Moccasin v. Suffolk County, 246 A.D.3d at 1063, 249 N.Y.S.3d 617, quoting Saarinen v. Kerr, 84 N.Y.2d at 501, 620 N.Y.S.2d 297, 644 N.E.2d 988).

Here, viewing the defendants' motion for summary judgment dismissing the complaint in the light most favorable to the plaintiff, I find that the defendants failed to carry their burden of establishing that Gallegos did not act with reckless disregard for the safety of others by making a U-turn from the parking lane in front of the double-parked vehicle into the plaintiff's path of travel.  No evidence was presented as to whether Gallegos actually looked to see whether any vehicles were traveling in the southbound travel lane next to the double-parked vehicle prior to colliding with the plaintiff's vehicle.  Rather, Gallegos testified that he was looking in his rear view mirror in the seconds prior to the collision, and not toward the southbound travel lane that he was in the process of turning into.  Moreover, it is undisputed that Gallegos did not activate his horn or siren, and there is a triable issue of fact as to whether Gallegos activated his vehicle's turret lights.  Under these circumstances, the defendants' submissions simply do not evince that Gallegos took precautionary measures to avoid causing harm to others in making the U-turn such that it can be said that he did not act with “conscious indifference” to the consequences of his actions (see Saarinen v. Kerr, 84 N.Y.2d at 501, 620 N.Y.S.2d 297, 644 N.E.2d 988;  Moccasin v. Suffolk County, 246 A.D.3d at 1062, 249 N.Y.S.3d 617;  Bourdierd v. City of Yonkers, 213 A.D.3d at 899, 900, 184 N.Y.S.3d 808;  cf.  Levere v. City of Syracuse, 173 A.D.3d 1702, 1703–1704, 103 N.Y.S.3d 212;  Flood v. City of Syracuse, 166 A.D.3d at 1573, 1574, 88 N.Y.S.3d 740;  Green v. State of New York, 71 A.D.3d 1310, 1312, 897 N.Y.S.2d 536).

Accordingly, I respectfully dissent.

DILLON, J.P., WARHIT and QUIRK, JJ., concur.