SHEPHARD v. John J. Zordan, et al., defendants-respondents.

Reset A A Font size: Print

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

Albert Lloyd SHEPHARD, et al., plaintiffs-respondents, v. CITY OF NEW YORK, appellant, John J. Zordan, et al., defendants-respondents.

Decided: April 24, 2007

HOWARD MILLER, J.P., DAVID S. RITTER, JOSEPH COVELLO, and WILLIAM E. McCARTHY, JJ. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow, Melissa Pressley, and Elizabeth S. Natrella of counsel), for appellant. Gary B. Pillersdorf & Associates, P.C., New York, N.Y. (Andrew H. Pillersdorf and Pollack, Pollack, Isaac & De Cicco [Brian J. Isaac] of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant City of New York appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated January 6, 2006, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant City of New York for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.

 “The manner in which a police officer operates his or her vehicle in responding to an emergency call may not form the basis for civil liability to an injured third party unless the officer acted in reckless disregard for the safety of others” (Badalamenti v. City of New York, 30 A.D.3d 452, 453, 817 N.Y.S.2d 134;  see Saarinen v. Kerr, 84 N.Y.2d 494, 501, 620 N.Y.S.2d 297, 644 N.E.2d 988;  Rodriguez v. Incorporated Vil. of Freeport, 21 A.D.3d 1024, 801 N.Y.S.2d 352;  Turini v. County of Suffolk, 8 A.D.3d 260, 778 N.Y.S.2d 66;  Molinari v. City of New York, 267 A.D.2d 436, 700 N.Y.S.2d 489;  Vehicle and Traffic Law § 1104[e] ).  “The ‘reckless disregard’ standard requires proof that the officer intentionally committed 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” (Badalamenti v. City of New York, supra at 453, 817 N.Y.S.2d 134).

 Here, the City established its prima facie entitlement to judgment as a matter of law by demonstrating that the police officers' conduct did not rise to the level of reckless disregard for the safety of others.   In opposition, the plaintiffs failed to raise a triable issue of fact (see Teitelbaum v. City of New York, 300 A.D.2d 649, 650, 752 N.Y.S.2d 705;  Demutiis v. City of New York, 253 A.D.2d 734, 677 N.Y.S.2d 496;  DeLeonardis v. Port Washington Police Dist., 237 A.D.2d 322, 655 N.Y.S.2d 417;  Young v. Village of Lynbrook, 234 A.D.2d 455, 650 N.Y.S.2d 804;  Powell v. City of Mount Vernon, 228 A.D.2d 572, 644 N.Y.S.2d 766;  cf. Spalla v. Village of Brockport, 295 A.D.2d 900, 744 N.Y.S.2d 731).   Accordingly, the City's motion for summary judgment should have been granted.

Copied to clipboard