CORALLO v. MARTINO

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

Tracy L. CORALLO, et al., respondents, v. Paul MARTINO, et al., appellants, et al., defendants.

Decided: January 27, 2009

PETER B. SKELOS, J.P., FRED T. SANTUCCI, WILLIAM E. McCARTHY, and THOMAS A. DICKERSON, JJ. Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina of counsel), for appellants. Andrew John Calcagno, Staten Island, N.Y., for respondents.

In an action to recover damages for personal injuries, etc., the defendants Paul Martino, Staten Island Rapid Transit Operating Authority, City of New York Metropolitan Transportation Authority, and New York City Transit Authority appeal from an order of the Supreme Court, Richmond County (Gigante, J.), dated October 5, 2007, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

 Pursuant to Vehicle and Traffic Law § 1104, drivers of “authorized emergency vehicles” have a qualified privilege to disregard certain traffic laws during an emergency operation (see Vehicle and Traffic Law § 1104[b] [1]-[4];  Szczerbiak v. Pilat, 90 N.Y.2d 553, 553, 664 N.Y.S.2d 252, 686 N.E.2d 1346).   An officer's conduct during such an emergency operation may not form the basis of civil liability to an injured third party unless the officer acted in reckless disregard for the safety of others (see Vehicle and Traffic Law § 1104[e];  Saarinen v. Kerr, 84 N.Y.2d 494, 501, 620 N.Y.S.2d 297, 644 N.E.2d 988;  Shephard v. City of New York, 39 A.D.3d 842, 835 N.Y.S.2d 297;  Badalamenti v. City of New York, 30 A.D.3d 452, 817 N.Y.S.2d 134;  Rodriguez v. Incorporated Vil. of Freeport, 21 A.D.3d 1024, 801 N.Y.S.2d 352;  Molinari v. City of New York, 267 A.D.2d 436, 700 N.Y.S.2d 489).   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 (see Szczerbiak v. Pilat, 90 N.Y.2d at 557, 664 N.Y.S.2d 252, 686 N.E.2d 1346;  Campbell v. City of Elmira, 84 N.Y.2d 505, 511, 620 N.Y.S.2d 302, 644 N.E.2d 993;  Saarinen v. Kerr, 84 N.Y.2d at 501, 620 N.Y.S.2d 297, 644 N.E.2d 988;  Burrell v. City of New York, 49 A.D.3d 482, 853 N.Y.S.2d 598;  Puntarich v. County of Suffolk, 47 A.D.3d 785, 850 N.Y.S.2d 182).

 Here, even accepting the appellants' contention that the appellant police officer Paul Martino was operating his police vehicle during an emergency operation, the appellants failed to establish, prima facie, that Officer Martino did not act in reckless disregard for the safety of others when he entered the subject intersection.   Pursuant to Vehicle and Traffic Law § 1104(b)(2), “[t]he driver of an authorized emergency vehicle may ․ [p]roceed past a steady red signal ․ but only after slowing down as may be necessary for safe operation.”   The appellants' submissions in support of their motion failed to eliminate questions of fact as to whether Officer Martino slowed down his police vehicle prior to entering the intersection against a red light, checked for oncoming traffic before entering the intersection, and activated the siren on his vehicle before proceeding into the intersection.   Accordingly, the appellants did not establish their entitlement to summary judgment dismissing the complaint insofar as asserted against them (see Burrell v. City of New York, 49 A.D.3d 482, 853 N.Y.S.2d 598;  Badalamenti v. City of New York, 30 A.D.3d 452, 817 N.Y.S.2d 134;  see also Baines v. City of New York, 269 A.D.2d 309, 703 N.Y.S.2d 463;  Gordon v. County of Nassau, 261 A.D.2d 359, 689 N.Y.S.2d 192).   Since the appellants did not meet their initial burden, we need not review the sufficiency of the plaintiffs' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

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