Opinion
8498 Index 303324/13
02-26-2019
Ramona SANTANA, Plaintiff–Appellant, v. CITY OF NEW YORK, et al., Defendants–Respondents.
Arnold E. Di Joseph, P.C., New York (Arnold E. Di Joseph III of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Nwamaka Ejebe of counsel), for respondents.
Arnold E. Di Joseph, P.C., New York (Arnold E. Di Joseph III of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Nwamaka Ejebe of counsel), for respondents.
Sweeny, J.P., Manzanet–Daniels, Webber, Oing, Singh, JJ.
The governmental function immunity doctrine does not apply in this case where plaintiff pedestrian was injured when she was struck by a police vehicle that was allegedly pursuing a vehicle that had committed a traffic infraction (see generally Valdez v. City of New York, 18 N.Y.3d 69, 75–76, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011] ). Instead, where a plaintiff alleges that a municipality and/or its employees were negligent in the ownership or operation of an authorized emergency vehicle while engaged in one of the activities protected by Vehicle and Traffic Law § 1104(b), the "reckless disregard" standard set forth in Vehicle and Traffic Law § 1104(e) applies ( Kabir v. County of Monroe, 16 N.Y.3d 217, 920 N.Y.S.2d 268, 945 N.E.2d 461 [2011] ).Here, a factual issue exists as to whether defendants were engaged in a protected activity under Vehicle and Traffic Law § 1104(b), namely, proceeding past a steady red signal (see Vehicle and Traffic Law § 1104[b][2] ), while pursuing a vehicle for a traffic violation so as to apply the reckless standard of care as opposed to ordinary negligence principles ( Vehicle and Traffic Law § 1104[e] ; see Kabir, 16 N.Y.3d at 220, 920 N.Y.S.2d 268, 945 N.E.2d 461 ).