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Supreme Court, Appellate Division, Fourth Department, New York.

Kevin YERDON, Plaintiff-Respondent, v. COUNTY OF OSWEGO, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., HURLBUTT, LUNN, FAHEY, AND PINE, JJ. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Christine Gasser of Counsel), for Defendant-Appellant. Powers & Santola, LLP, Albany (Laura M. Jordan of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment that, following a bench trial, awarded plaintiff damages for injuries he sustained when a vehicle driven by a County Sheriff's Deputy struck him as he was crossing the road.   The Deputy was pursuing a speeding vehicle, and we agree with defendant that, because the Deputy was engaged in an emergency operation within the meaning of Vehicle and Traffic Law § 1104(b), Supreme Court erred in determining that defendant was not entitled to the benefit of that statute (see § 114-b;  see also Saarinen v. Kerr, 84 N.Y.2d 494, 620 N.Y.S.2d 297, 644 N.E.2d 988).   The Deputy's own testimony characterizing the chase as a nonemergency operation is of no moment (see Criscione v. City of New York, 97 N.Y.2d 152, 158, 736 N.Y.S.2d 656, 762 N.E.2d 342).

We agree with the court, however, that the evidence established that the Deputy acted with “reckless disregard for the safety of others” (Vehicle and Traffic Law § 1104[e] ), and that defendant therefore was not shielded by the provisions of section 1104(b).  Viewing the evidence in this bench trial in the light most favorable to plaintiff, the prevailing party (see Rauh v. Conti, 16 A.D.3d 1144, 1144-1145, 790 N.Y.S.2d 894), we conclude that the court's determination that the Deputy's actions were a proximate cause of the accident and the court's apportionment of liability are supported by a fair interpretation of the evidence (see Farace v. State of New York, 266 A.D.2d 870, 698 N.Y.S.2d 376).   The record does not support defendant's contention, which is based merely on “strong suspicion,” that the court gave improper weight to the death of plaintiff's girlfriend in the same accident in determining plaintiff's emotional damages (see generally Trombetta v. Conkling, 82 N.Y.2d 549, 553-554, 605 N.Y.S.2d 678, 626 N.E.2d 653).   Indeed, the court expressly stated that plaintiff's emotional and physical injuries were caused contemporaneously, when the Deputy struck plaintiff with a vehicle traveling at an excessive rate of speed.   We conclude that the award for physical and emotional damages was proper (see generally Johnson v. State of New York, 37 N.Y.2d 378, 381, 372 N.Y.S.2d 638, 334 N.E.2d 590), and that the award does not “deviate[ ] materially from what would be reasonable compensation” (CPLR 5501[c] ).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.