Opinion
346 CA 21-01365
07-08-2022
Yvonnia C. PORTIS, Plaintiff-Respondent, v. Nicholas D. YATES, Wayne County Sheriff and County of Wayne, Defendants-Appellants.
GOLDBERG SEGALLA LLP, ROCHESTER (PATRICK B. NAYLON OF COUNSEL), FOR DEFENDANTS-APPELLANTS. ELLIOTT STERN CALABRESE, LLP, ROCHESTER (DAVID S. STERN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
GOLDBERG SEGALLA LLP, ROCHESTER (PATRICK B. NAYLON OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
ELLIOTT STERN CALABRESE, LLP, ROCHESTER (DAVID S. STERN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed.
Memorandum: Plaintiff commenced this action seeking to recover damages for injuries she sustained when the vehicle she was driving was involved in a collision with a marked patrol vehicle operated by defendant Nicholas D. Yates, a deputy sheriff (deputy), who was at the time responding to a radio dispatch of an armed robbery in progress. The collision occurred when the deputy attempted to pass plaintiff's vehicle on the left, while plaintiff was at the same time attempting to make a left turn. Defendants moved for summary judgment dismissing the complaint. Supreme Court denied the motion, and defendants now appeal.
Initially, we note that there is no dispute that the deputy was operating an authorized emergency vehicle at the time of the accident (see Vehicle and Traffic Law § 101 ). Furthermore, we conclude that the deputy was involved in an emergency operation as contemplated by Vehicle and Traffic Law § 114-b (see Criscione v. City of New York , 97 N.Y.2d 152, 158, 736 N.Y.S.2d 656, 762 N.E.2d 342 [2001] ; Lacey v. City of Syracuse , 144 A.D.3d 1665, 1666, 41 N.Y.S.3d 830 [4th Dept. 2016], lv denied 32 N.Y.3d 913, 2019 WL 191927 [2019] ; Allen v. Town of Amherst , 8 A.D.3d 996, 997, 778 N.Y.S.2d 598 [4th Dept. 2004] ), and that he was engaged in privileged conduct (see § 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] ). Thus, "the applicable standard of liability is reckless disregard for the safety of others rather than ordinary negligence" ( Lacey , 144 A.D.3d at 1666, 41 N.Y.S.3d 830 ; see Kabir , 16 N.Y.3d at 220, 920 N.Y.S.2d 268, 945 N.E.2d 461 ). However, we conclude that defendants failed to meet their initial burden on their motion of establishing as a matter of law that the deputy's actions did not rise to the level of reckless disregard for the safety of others inasmuch as their own submissions raised triable issues of fact with respect to the speed at which the deputy's vehicle was traveling at the time of the accident, whether that speed was reckless under the circumstances, and whether or when he activated his emergency lights and siren (see Sanicola v. Wantagh Fire Dist., Inc. , 187 A.D.3d 1232, 1232-1233, 131 N.Y.S.3d 624 [2d Dept. 2020] ; Connelly v. City of Syracuse , 103 A.D.3d 1242, 1242-1243, 959 N.Y.S.2d 779 [4th Dept. 2013] ; see generally Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). Thus, the court properly denied the motion regardless of the sufficiency of plaintiff's opposing papers (see generally Winegrad , 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
We have considered defendants’ remaining contentions and conclude that they do not warrant modification or reversal of the order.