Constas v. Desir

Full title: LUKE CONSTAS AND PALOMA DIAZ, Plaintiffs, v. JACQUES DESIR, YASIR…

Court: Supreme Court of the State of New York, New York County

Date published: Jun 7, 2011

2011 N.Y. Slip Op. 31554 (N.Y. Sup. Ct. 2011)

Opinion

109789/09.

June 7, 2011.

DECISION/ORDER

HON. CYNTHIA S. KERN, J.S.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:

1 2 3

Papers Numbered Notice of Motion and Affidavits Annexed ...................... Notice of Cross Motion and Answering Affidavits .............. Affirmations in Opposition to the Cross-Motion ............... Replying Affidavits .......................................... Exhibits .....................................................

Plaintiff commenced the present action to recover damages for personal injuries they sustained when they were passengers in a taxi cab which collided with an NYPD van driven by police officer David Gonzalez at the intersection of Madison Avenue and 108^th Street. Defendants the City of New York and the New York City Police Department now move for summary judgment dismissing the complaint on the ground that police officer David Gonzalez was engaged in the emergency operation of a police vehicle under Vehicle Traffic Law § 114-b and that his behavior did not constitute reckless disregard under the standard set by the Court of Appeals in Saarinen v. Kerr, 84 N.Y.2d 494 (1994). For the reasons set forth below, defendants' motion for summary judgment dismissing the complaint is denied.

The relevant facts are as follows. On November 18, 2005, police officer David Gonzalez was responding to a radio call for an officer requesting assistance in stopping a stolen vehicle moving north on Madison Avenue. He testified at his deposition that when he received this call, he activated his lights and sirens and proceeded North on Madison Avenue. He testified that at 108^th street he slowed down and the taxi cab also slowed down but that as he proceeded into the intersection the taxi cab speeded up and the two vehicles collided. He did not remember what color the traffic light was at the time he proceeded through the light. The plaintiff Ms. Diaz testified that she did hear the sirens and that the light was red when the taxi driver went through it. The plaintiff Mr. Constas testified that the light was red when the taxi driver went through it. He also testified that he did not hear any sirens and that he did not see any flashing lights. The driver of the taxi testified that the traffic light was green when he went through it. He also testified that he did not hear any sirens and did not recall seeing any emergency lights on the vehicle and does not know if the lights were on.

On a motion for summary judgment, the movant bears the burden of presenting sufficient evidence to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). Summary judgment should not be granted where there is any doubt as to the existence of a material issue of fact. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). Once the movant establishes a prima facie right to judgment as a matter of law, the burden shifts to the party opposing the motion to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim." Id.

The Court of Appeals has held that the relevant standard for assessing liability by the police for injuries sustained by third parties during an emergency operation of a police vehicle is "reckless disregard for the safety of others." Saarinen v. Kerr, 84 N.Y.2d 494 (1994). In Saarinen, the court held that the reckless disregard standard requires "evidence that 'the actor has intentionally done 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' and has done so with conscious indifference to the outcome." Saarinen at 501, quoting Prosser and Keeton, Torts § 34, at 213 (5^th ed). Courts have held that summary judgment should be denied where there are disputed factual issues as to whether an officer engaged in the emergency operation of a vehicle went through a red light and whether he had sirens on because a reasonable jury could conclude that the officer was reckless in proceeding through an intersection against a red light without having activated his sirens. See Campbell v. City of Elmira, 84 N.Y.2d 505 (1994); see also Lupole v. Romano, 207 A.D.2d 697, 698 (3^rd Dept. 2003). The Court of Appeals held in Campbell v. City of Elmira, 84 N.Y.2d 505 (1994) that the evidence supported the jury's finding that the driver of a fire truck acted with reckless disregard based on testimony that the driver crossed an intersection against a red light and that the fire truck's sirens were not engaged. In Lupole v. Romano, 207 A.D.2d 697, 698 (3^rd Dept. 2003), the Third Department held that a jury could "reasonably conclude that [an officer in the emergency operation of a police vehicle] was reckless in proceeding through [an] intersection against a red light without having activated the lights and siren." See also Badalamenti v. City of New York, 30 A.D.3d 452 (2^nd Dept. 2006).

As an initial matter, it is undisputed that the police officer driver was engaged in an emergency operation of the vehicle as defined by New York State Vehicle and Traffic Law § 114-b as he was responding to a radio call for an officer requesting assistance. However, the moving defendants are not entitled to summary judgment as there is an unresolved issue of fact regarding whether police officer David Gonzalez acted with reckless disregard. As the courts have held, the driver of a police vehicle engaged in an emergency operation who proceeds through a red light without activating the vehicle's lights and sirens could be considered to have acted with reckless disregard. See Campbell v. City of Elmira, 84 N.Y.2d 505 (1994), supra. In the instant case, there is an issue of fact regarding whether the lights and sirens on the ambulance were activated at the time of the accident and whether the light was red or green. The police officer testified that the lights and sirens were activated and one of the plaintiff passengers testified that she heard sirens but the other passenger and the taxi driver said that they did not hear any sirens and did not recall seeing any lights. Although the plaintiff passengers testified that the light was red, the driver of the taxi cab testified that the light was green and the police officer did not recall what the light was. Because of these disputed issues of fact, summary judgment on the issue of whether the police officer driver acted with reckless disregard for the safety of others is not appropriate.

Accordingly, the moving defendants' motion for summary judgment dismissing the complaint is denied. This constitutes the decision and order of the court.