Opinion
2014-07-3
Chalina RUIZ, Plaintiff–Respondent, v. Brendan L. COPE and City of Syracuse, Defendants–Appellants.
Robert P. Stamey, Corporation Counsel, Syracuse, D.J. & J.A. Cirando, Esqs. (John A. Cirando Of Counsel), for Defendants–Appellants. Greene & Reid, PLLC, Syracuse (Eugene W. Lane of Counsel), for Plaintiff–Respondent.
Robert P. Stamey, Corporation Counsel, Syracuse, D.J. & J.A. Cirando, Esqs. (John A. Cirando Of Counsel), for Defendants–Appellants. Greene & Reid, PLLC, Syracuse (Eugene W. Lane of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO AND WHALEN, JJ.
MEMORANDUM:
Defendants appeal from an order and judgment awarding plaintiff damages following a nonjury trial. Plaintiff commenced this action seeking to recover damages for injuries she allegedly sustained when the vehicle she was driving collided with a Syracuse Police Department (SPD) vehicle being driven by Brendan L. Cope (defendant), a police officer who was in the process of “field training” under the supervision of a sergeant. Shortly before the collision at a blind intersection, defendant received a “priority one,” “shots-fired” radio call, and the sergeant activated the vehicle's siren and lights. As defendant's vehicle approached the intersection, his direction of travel had a red light, and the cross street on which plaintiff was driving had a green light. Defendant failed to come to a complete stop prior to entering the intersection, in violation of SPD rules and regulations. Witness testimony and the physical evidence, including a 45–foot skid mark, presented conflicting accounts whether defendant slowed down or came to a near stop prior to entering the intersection and whether he failed to look left, i.e., in plaintiff's direction.
Defendants contend, inter alia, that Supreme Court erred in denying that part of their pretrial motion for summary judgment dismissing the complaint on the ground that defendant's actions do not rise to the level of recklessness required under Vehicle and Traffic Law § 1104. We reject that contention. Although defendants met their initial burden on the motion, we conclude that plaintiff raised a triable issue of fact whether defendant acted with “reckless disregard for the safety of others” in his operation of the police vehicle (§ 1104[e]; see generally Saarinen v. Kerr, 84 N.Y.2d 494, 501, 620 N.Y.S.2d 297, 644 N.E.2d 988). Specifically, plaintiff submitted evidence that defendant was traveling at an excessive rate of speed; that defendant did not slow down or look left as he approached the intersection; that defendant's direction of travel was controlled by a red light; that a building obstructed defendant's and plaintiff's views of each other; that there was other vehicular traffic in the vicinity; that the roads were wet; and that defendant had violated the rules and regulations of the SPD ( see Ham v. City of Syracuse, 37 A.D.3d 1050, 1052, 829 N.Y.S.2d 770,lv. dismissed8 N.Y.3d 976, 836 N.Y.S.2d 545, 868 N.E.2d 228;Allen v. Town of Amherst, 294 A.D.2d 828, 829, 740 N.Y.S.2d 904,lv. denied3 N.Y.3d 609, 786 N.Y.S.2d 812, 820 N.E.2d 291;see generally Elnakib v. County of Suffolk, 90 A.D.3d 596, 597, 934 N.Y.S.2d 223).
Contrary to defendants' further contention, we conclude that the court's finding following the trial that defendant had “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 ha[d] done so with conscious indifference to the outcome” was based on a fair interpretation of the evidence ( Ham, 37 A.D.3d at 1052, 829 N.Y.S.2d 770 [internal quotation marks omitted]; see Campbell v. City of Elmira, 84 N.Y.2d 505, 508, 510–511, 620 N.Y.S.2d 302, 644 N.E.2d 993;see generally Matter of City of Syracuse Indus. Dev. Agency [Alterm, Inc.], 20 A.D.3d 168, 170, 796 N.Y.S.2d 503). Furthermore, the court's apportionment of liability is amply supported by the record ( cf. Don Vito v. State of New York, 182 A.D.2d 1070, 1071, 582 N.Y.S.2d 872).
Likewise, we reject defendants' contention that the court's determination that plaintiff sustained a “serious injury” under the 90/180–day and significant limitation of use categories of Insurance Law § 5102(d) is not supported by objective medical evidence. Plaintiff provided objective evidence of her injuries in the form of her chiropractor's quantification of her loss of range of motion and observations of muscle spasms, MRI reports, and an EMG study ( see generally Limardi v. McLeod, 100 A.D.3d 1375, 1376–1377, 953 N.Y.S.2d 762;Frizzell v. Giannetti, 34 A.D.3d 1202, 1203, 824 N.Y.S.2d 531).
Lastly, defendants failed to preserve for our review their contention that plaintiff's vicarious liability claim against defendant City of Syracuse (City) should have precluded her negligent training and supervision claim against the City ( see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745). In any event, although we agree with defendants that the undisputed fact that defendant was acting within the scope of his employment should have precluded plaintiff as a matter of law from bringing a claim that the City was liable for the negligent training and supervision of defendant ( see Leftenant v. City of New York, 70 A.D.3d 596, 597, 895 N.Y.S.2d 88;Matter of Trader v. State of New York, 277 A.D.2d 978, 978, 716 N.Y.S.2d 626), we conclude that the court's determination that the City negligently trained and supervised defendant is harmless ( seeCPLR 2002), inasmuch as the City is nonetheless vicariously liable under the doctrine of respondeat superior ( seeGeneral Municipal Law § 50–c; see generally Pacelli v. City of Syracuse, 305 A.D.2d 1062, 1063, 760 N.Y.S.2d 790).
It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.