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Rusho v. State

March 23, 2009

JULIE L. RUSHO AND WAYNE K. RUSHO, CLAIMANTS,
v.
STATE OF NEW YORK, DEFENDANT.



The opinion of the court was delivered by: Norman I. Siegel, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

This case comes before the court on two motions. Claimants have moved for partial summary judgment in favor of claimant on the issues of liability and serious injury. Defendant has cross-moved for summary judgment dismissing the case. The claim arises out of a motor vehicle accident which occurred on May 22, 2006, shortly after 5:00 pm. It is alleged that the road conditions were clear and bare. At the time, claimant Julie L. Rusho was a passenger in a vehicle owned and operated by her husband, claimant Wayne K. Rusho.*fn1 The Rusho vehicle was traveling southbound on Genesee Street in Utica, New York. According to claimant's moving papers, the roadway was two lanes in each direction at the area of the crash site and claimant's vehicle was in the southbound "passing" lane.

Claimant alleges that defendant's vehicle was being operated by state Parole Officer Clifford Cuda, and said vehicle was traveling northbound on Genesee Street when the defendant's vehicle, without the use of a turning signal, the sounding of a horn, or any other warning lights or sirens, turned left in front of the claimant's vehicle, entered the southbound passing lane and impacted the claimant's vehicle, causing claimant to sustain personal injury.

Claimant's position is that defendant's driver was clearly negligent in turning his unmarked Ford vehicle, lacking in any police markings, sirens or lighting, into the path of an oncoming vehicle without proper warning.

It is the contention of claimant that the defendant is not entitled to the "reckless"standard afforded to certain police and emergency vehicles under Vehicle and Traffic Law Section 1104, as this was not an emergency. Claimant argues further that even if the reckless standard were to be applicable, defendant's driver's behavior was reckless.

Claimant argues that Parole Officer Cuda and his passenger, Parole Officer Fox, were on an investigative mission to locate a parole absconder and that this did not constitute an "emergency" within the meaning of Vehicle and Traffic Law Section 1104, even though Officer Cuda had seen a vehicle that appeared to match the vehicle of the absconder and was in the process of turning to initiate pursuit.

Lastly, claimant provides certified copies of hospital records and other medical reports, indicating that claimant sustained a fractured sternum, and thus meets the "serious injury" threshold necessary to maintain this action. Defendant does not dispute this point and the Court finds, in the absence of opposition, and based upon the documentary evidence, that claimant has sustained a serious injury (Williams v Lucianatelli, 259 AD2d 1003 [4th Dept 1999]).

Defendant cross-moves for summary judgment and does not dispute the basic facts as alleged by claimant. However, defendant argues that Officer Cuda was pursuing a violent felony parole absconder in a state-owned parole vehicle at the time of the incident and that said vehicle was a "police vehicle" within the meaning of applicable law, thus exempting defendant from the requirement of sounding sirens or flashing red lights to qualify for the heightened standards of Vehicle and Traffic Law Section 1104, and that it was an "authorized emergency vehicle" within the meaning of the statute.

The court turns first to the issue of whether the defendant's vehicle is one which is entitled to the heightened standard of Vehicle and Traffic Law Section 1104. It should be noted that claimant does not oppose the defendant's motion on this point, but rather argues in opposition that the defendant's vehicle was not performing an "emergency operation" at the time of the accident.

The court is in accord with defendant's position that the vehicle falls within the ambit of Vehicle and Traffic Law Section 1104. The section provides, in relevant part, that the "driver of an authorized emergency vehicle, when involved in an emergency operation" may "disregard regulations governing directions of movement or turning in specific directions" (Vehicle and Traffic Law Sections 1104 [a] and 1104 [b] [4]). The section further provides that specified audible signals and warning lights are not required "for an authorized emergency vehicle operated as a police vehicle" (Vehicle and Traffic Law Section 1104 [c]). Lastly, the statute provides that these provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.

(Vehicle and Traffic Law Section 1104 [e]).

Vehicle and Traffic Law Section 101 provides that a police vehicle is an "authorized emergency vehicle". Vehicle and Traffic Law Section 132-a defines a "police vehicle" as a "vehicle owned by the state... and operated by the... law enforcement agency of such governmental unit". A vehicle used by a state parole officer qualifies as such a "police vehicle" (Daniels v State of New York, UID No. 2002-001-501, Claim No. 99062, April 16, 2002, Read, P.J.). Thus, the vehicle operated by Parole Officer Cuda, while in the course of his duties, qualifies as an "authorized emergency vehicle" within the meaning of Vehicle and Traffic Law Section 1104 and is entitled to the heightened reckless standard, provided that the vehicle was "involved in an emergency operation" (the parole officers qualify as police officers in the performance of their investigation and pursuit of the parole absconder, pursuant to Vehicle and Traffic Law Section 132).

Claimant asserts that the vehicle was not involved in an emergency operation, relying upon the defendant's internal accident reports and the deposition testimony of the parole officers in the vehicle at the time of the accident. Claimant cites testimony that the officers were on a fact-finding mission to determine if the parole absconder was at a nearby motel and that the mission was investigatory. Claimant emphasizes that the defendant driver saw the ...


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