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Rincon v. A.C. Dusenbury

Supreme Court of New York, Second Department

May 22, 2013

Marta Luz Rincon, appellant,
v.
A.C. Dusenbury, et al., respondents. Index No. 13696/09

Fellows, Hymowitz & Epstein, P.C., New City, N.Y. (Steven R. Hymowitz and Jared Viders of counsel), for appellant.

O'Connor, McGuinness, Conte, Doyle, Oleson, Watson & Loftus, LLP (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Kathleen D. Foley], of counsel), for respondents.

MARK C. DILLON, J.P. CHERYL E. CHAMBERS LEONARD B. AUSTIN SHERI S. ROMAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (O. Bellantoni, J.), entered November 29, 2011, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured while crossing Westchester Avenue in the Village of Port Chester when she entered the street from between two parked cars and was struck by a marked Village of Port Chester police vehicle with lights and siren engaged. The plaintiff was not within a crosswalk when she was struck.

"[T]he driver of an authorized emergency vehicle' engaged in an emergency operation' is exempt from certain rules of the road' under Vehicle and Traffic Law § 1104" (Criscione v City of New York, 97 N.Y.2d 152, 156 [citations omitted]; see Kabir v County of Monroe, 16 N.Y.3d 217; Mouzakes v County of Suffolk, 94 A.D.3d 829). The manner in which a police officer operates his or her vehicle in an emergency situation 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 (see Vehicle and Traffic Law § 1104[e]; Saarinen v Kerr, 84 N.Y.2d 494, 501; Quintana v Wallace, 95 A.D.3d 1287; Daly v County of Westchester, 63 A.D.3d 988; Puntarich v County of Suffolk, 47 A.D.3d 785). "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" (Ferrara v Village of Chester, 57 A.D.3d 719, 720; see Campbell v City of Elmira, 84 N.Y.2d 505, 510; Saarinen v Kerr, 84 N.Y.2d at 494; Hemingway v City of New York, 81 A.D.3d 595; Daly v County of Westchester, 63 A.D.3d at 989).

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the police officer operating the vehicle which struck the plaintiff was engaged in an emergency operation at the time of the collision (see Vehicle and Traffic Law § 114-b), and that the officer's conduct did not rise to the level of reckless disregard for the safety of others (see Saarinen v Kerr, 84 N.Y.2d at 494; Hemingway v City of New York, 81 A.D.3d at 595; Woodard v Thomas, 77 A.D.3d 738; Daniels v City of New York, 28 A.D.3d 415). In opposition, the plaintiff failed to raise a triable issue of fact (see Meade v Chestnut, 53 A.D.3d 645; Puntarich v County of Suffolk, 47 A.D.3d 785; Daniels v City of New York, 28 A.D.3d at 415). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

DILLON, J.P., CHAMBERS, AUSTIN and ROMAN, JJ., concur.


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