Opinion
952 CA 21-00004
03-11-2022
Francis DESTINO, Claimant-Respondent-Appellant, v. STATE of New York, Defendant-Appellant-Respondent. (Claim No. 119498.)
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KEVIN C. HU OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT. LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR CLAIMANT-RESPONDENT-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KEVIN C. HU OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR CLAIMANT-RESPONDENT-APPELLANT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is affirmed without costs.
Memorandum: Claimant commenced this action seeking damages for injuries he sustained when the vehicle he was operating collided with a New York State Police (NYSP) vehicle responding to an emergency. Following a bifurcated trial on liability, the Court of Claims determined that defendant, State of New York (State), was 75 percent liable and claimant was 25 percent liable for the accident. Ultimately, a judgment was entered awarding claimant damages, as reduced by his percentage of liability. The State appeals and claimant cross-appeals. Both parties contend that the court's liability determination is not supported by a fair interpretation of the evidence. We affirm.
The undisputed testimony at trial established that an NYSP trooper, while responding to a call regarding a domestic violence incident with firearms present, proceeded into an intersection against a traffic control device at a time when there was "[v]ery dense fog" that created "almost ... white-out condition[s]" with little visibility. Claimant's vehicle, which was proceeding with the right-of-way, struck the trooper's vehicle.
Addressing first the State's appeal, we agree with the State that the applicable standard of liability with respect to the trooper is reckless disregard for the safety of others, as opposed to ordinary negligence (see Vehicle and Traffic Law § 1104 [e] ), inasmuch as the trooper was operating an authorized emergency vehicle while involved in an emergency operation and engaged in privileged conduct (see §§ 101, 1104 [a], [b] ; Kabir v. County of Monroe , 16 N.Y.3d 217, 220, 920 N.Y.S.2d 268, 945 N.E.2d 461 [2011] ; Perkins v. City of Buffalo , 151 A.D.3d 1941, 1942, 57 N.Y.S.3d 866 [4th Dept. 2017] ), and his police vehicle was not required to have its emergency lights or siren activated (see § 1104 [c] ; Perkins , 151 A.D.3d at 1942, 57 N.Y.S.3d 866 ).
Viewing the evidence in this nonjury trial in the light most favorable to claimant, the prevailing party (see Yerdon v. County of Oswego , 43 A.D.3d 1437, 1438, 842 N.Y.S.2d 834 [4th Dept. 2007] ), and deferring to the court's credibility determinations (see Williams v. State of New York , 187 A.D.3d 1522, 1522, 131 N.Y.S.3d 461 [4th Dept. 2020], lv denied 36 N.Y.3d 909, 2021 WL 1183590 [2021] ; Phearsdorf v. State of New York , 175 A.D.3d 1819, 1820, 107 N.Y.S.3d 762 [4th Dept. 2019] ), we conclude that the evidence at trial established that the trooper passed a stop sign and entered an intersection at a high rate of speed and directly into oncoming traffic without a siren or horn in a situation where there was "almost no visibility" due to "extreme" and "[v]ery dense" fog. Contrary to the State's contention, such circumstances support a determination that the trooper acted with reckless disregard for the safety of others (see e.g. Coston v. City of Buffalo , 162 A.D.3d 1492, 1493, 77 N.Y.S.3d 817 [4th Dept. 2018] ; Ruiz v. Cope , 119 A.D.3d 1333, 1334, 989 N.Y.S.2d 211 [4th Dept. 2014] ; Connelly v. City of Syracuse , 103 A.D.3d 1242, 1242-1243, 959 N.Y.S.2d 779 [4th Dept. 2013] ; cf. Levere v. City of Syracuse , 173 A.D.3d 1702, 1704, 103 N.Y.S.3d 212 [4th Dept. 2019] ; Williams v. Fassinger , 119 A.D.3d 1368, 1369, 989 N.Y.S.2d 561 [4th Dept. 2014], lv denied 24 N.Y.3d 912, 2012 WL 2053682 [2014]; Nikolov v. Town of Cheektowaga , 96 A.D.3d 1372, 1373-1374, 946 N.Y.S.2d 734 [4th Dept. 2012] ).
Contrary to claimant's contention on his cross appeal, the court's determination that claimant was negligent and its apportionment of some liability to claimant are supported by a fair interpretation of the evidence (see Ruiz , 119 A.D.3d at 1334, 989 N.Y.S.2d 211 ; Yerdon , 43 A.D.3d at 1438, 842 N.Y.S.2d 834 ).
All concur except Carni, J., who is not participating.