Opinion
2019–10380 Index No. 61021/17
03-09-2022
John D. COONEY, appellant, v. PORT CHESTER POLICE DEPARTMENT, et al., respondents.
Rosenberg Minc Falkoff & Wolff, LLP, New York, NY (Jesse M. Minc of counsel), for appellant. O'Connor, McGuiness, Conte, Doyle, Oleson, Watson & Loftus, LLP, White Plains, NY (Montgomery L. Effinger of counsel), for respondents.
Rosenberg Minc Falkoff & Wolff, LLP, New York, NY (Jesse M. Minc of counsel), for appellant.
O'Connor, McGuiness, Conte, Doyle, Oleson, Watson & Loftus, LLP, White Plains, NY (Montgomery L. Effinger of counsel), for respondents.
VALERIE BRATHWAITE NELSON, J.P., SHERI S. ROMAN, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated August 22, 2019. The order granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
The plaintiff allegedly was injured when the vehicle he was operating collided with a police vehicle operated by the defendant Michael J. Giandurco at an intersection in the Village of Port Chester. The plaintiff commenced this personal injury action against Giandurco, Port Chester Police Department, and the Village. Thereafter, the defendants moved for summary judgment dismissing the complaint. In an order dated August 22, 2019, the Supreme Court granted the defendants' motion. The plaintiff appeals.
"[T]he reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b)" ( Kabir v. County of Monroe, 16 N.Y.3d 217, 220, 920 N.Y.S.2d 268, 945 N.E.2d 461 ; see Martinez v. Incorporated Vil. of Freeport, 181 A.D.3d 947, 947, 119 N.Y.S.3d 892 ). Even where there is no dispute that the driver was involved in an emergency operation of an authorized vehicle, where the injury-causing conduct did not fall within any of the categories of privileged conduct set forth in Vehicle and Traffic Law § 1104(b), the plaintiff's claim is governed by principles of ordinary negligence (see Kabir v. County of Monroe, 16 N.Y.3d at 220, 920 N.Y.S.2d 268, 945 N.E.2d 461 ; Holliday v. City of New Rochelle, 195 A.D.3d 1002, 146 N.Y.S.3d 806 ; Martinez v. Incorporated Vil. of Freeport, 181 A.D.3d at 947, 119 N.Y.S.3d 892 ).
Here, the defendants failed to eliminate triable issues of fact as to whether Giandurco engaged in specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b) and whether the reckless disregard standard of care was therefore applicable (see Martinez v. Incorporated Vil. of Freeport, 181 A.D.3d at 947, 119 N.Y.S.3d 892 ; Reid v. City of New York, 148 A.D.3d 739, 740, 48 N.Y.S.3d 462 ). The defendants also failed to establish, prima facie, that under principles of ordinary negligence, Giandurco was not at fault in the happening of the accident (see Martinez v. Incorporated Vil. of Freeport, 181 A.D.3d at 947, 119 N.Y.S.3d 892 ; Reid v. City of New York, 148 A.D.3d at 740, 48 N.Y.S.3d 462 ). Since the defendants failed to meet their prima facie burden, we need not consider the sufficiency of the opposing 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 ). Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.
The plaintiff's remaining contentions are either academic or without merit.
BRATHWAITE NELSON, J.P., ROMAN, GENOVESI and DOWLING, JJ., concur.