SCHAEFFER v. DI DOMENICO

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

Lois SCHAEFFER and John A. Schaeffer, Respondents, v. Reno DI DOMENICO, Appellant.

Decided: April 25, 1997

Before GREEN, J.P., and LAWTON, DOERR, BALIO and FALLON, JJ. Monroe Co. Atty's. Office by Charles Baisch, Howard A. Stark, Rochester, for Appellant. Harter, Secrest & Emery (Jane A. Conrad, of counsel), Rochester, for Respondents. Foster, Foster & Zambito by Ken Payment, Charles N. Zambito, Rochester, for Respondent J. Schaeffer (Counterclaim).

Plaintiffs commenced this action to recover damages for injuries they sustained when their automobile was struck by a police vehicle driven by defendant, a Monroe County Deputy Sheriff.   At the time of the accident, defendant was responding to a report of a fight in the vicinity.   Defendant moved for summary judgment dismissing the complaint on the ground that he is immune from liability pursuant to Vehicle and Traffic Law § 1104.

Supreme Court properly denied that motion.   Defendant failed to establish as a matter of law that he did not act in reckless disregard for the safety of others when he crossed into the turning lane for oncoming traffic and proceeded through a congested intersection at a speed exceeding 50 miles per hour (see, Vehicle and Traffic Law § 1104[e];  Campbell v. City of Elmira, 84 N.Y.2d 505, 510-511, 620 N.Y.S.2d 302, 644 N.E.2d 993;  Rouse v. Dahlem, 228 A.D.2d 777, 643 N.Y.S.2d 744).

Order unanimously affirmed with costs.

MEMORANDUM: