Anderson v. Commack Fire Dist.

195 A.D.3d 779

150 N.Y.S.3d 116

Courtney ANDERSON, respondent,

v.COMMACK FIRE DISTRICT, et al., appellants.

2018–01021

Index No. 36752/12

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 23, 2021

June 16, 2021

Hannigan Law Firm PLLC, Delmar, N.Y. (Timothy C. Hannigan and Terence S. Hannigan of counsel), for appellant Commack Fire District.

Buttafuoco & Associates, PLLC, Woodbury, N.Y. (Ellen Buchholz and Scott Szczesny of counsel), for respondent.

Sapienza & Frank, Massapequa, N.Y. (Joseph F. Frank of counsel), for amicus curiae Association of Fire Districts of the State of New York.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, BETSY BARROS, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Daniel Martin, J.), dated November 28, 2017. The order, insofar as appealed from, denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Commack Fire District.

ORDERED that the appeal by the defendants John M. Muilenburg and the Commack Fire Department is dismissed as abandoned; and it is further,

ORDERED that the order is affirmed insofar as appealed from by the defendant Commack Fire District; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

On June 22, 2012, the plaintiff allegedly was injured when the vehicle she was driving collided with a fire truck owned by the defendant Commack Fire District (hereinafter the Fire District) and operated by the defendant John M. Muilenburg, a volunteer firefighter. The plaintiff commenced this action to recover damages for personal injuries. Thereafter, the defendants moved for summary judgment dismissing the complaint. In an order dated November 28, 2017, the Supreme Court, inter alia, granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against Muilenburg, but denied that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the Fire District. The court determined that Muilenburg made a prima facie showing that he could not be held liable under Vehicle and Traffic Law § 1104, since he did not operate the fire truck in reckless disregard for the safety of others, and that the plaintiff failed to raise a triable issue of fact in opposition to that prima facie showing. However, the court determined that the Fire District could be held liable for Muilenburg's ordinary negligence pursuant to General Municipal Law § 205–b, and that the Fire District failed to eliminate triable issues of fact as to whether Muilenburg was negligent in the operation of the fire truck.

Since " ‘[d]rivers of emergency vehicles have a primary obligation to respond quickly to preserve life and property and to enforce the criminal laws’ " ( Lawhorn v. City of New York, 186 A.D.3d 1509, 1511, 130 N.Y.S.3d 510, quoting Saarinen v. Kerr, 84 N.Y.2d 494, 497, 620 N.Y.S.2d 297, 644 N.E.2d 988 ), " Vehicle and Traffic Law § 1104(a) exempts them from certain traffic regulations ‘when involved in an emergency operation’ " ( Lawhorn v. City of New York, 186 A.D.3d at 1511, 130 N.Y.S.3d 510 ). Nevertheless, "drivers of emergency vehicles are not relieved of the[ ] duty to drive ‘with due regard for the safety of all persons’ and section 1104 does not ‘protect the driver from the consequences of his [or her] reckless disregard for the safety of others’ " ( Frezzell v. City of New York, 24 N.Y.3d 213, 217, 997 N.Y.S.2d 367, 21 N.E.3d 1028, quoting Vehicle and Traffic Law § 1104[e] ).

Pursuant to General Municipal Law § 205–b, "fire districts created pursuant to law shall be liable for the negligence of volunteer firefighters duly appointed to serve therein in the operation of vehicles owned by the fire district upon the public streets and highways of the fire district, provided such volunteer firefighters, at the time of any accident or injury, were acting in the discharge of their duties." Thus, contrary to the Fire District's contention, it was not limited to liability for conduct rising to the level of "reckless disregard" under Vehicle and Traffic Law § 1104(e), and could be held liable for the ordinary negligence of a volunteer firefighter operating the Fire District's vehicle (see DiFranco v. Essig, 2 A.D.3d 669, 768 N.Y.S.2d 633 ; see also Lynch v. Waters, 82 A.D.3d 1719, 1722, 922 N.Y.S.2d 884 ).

Here, the defendants failed to eliminate triable issues of fact as to whether Muilenburg was negligent in the operation of the fire truck and if any such negligence contributed to the accident (see DiFranco v. Essig, 2 A.D.3d at 670, 768 N.Y.S.2d 633 ). Thus, the defendants failed to establish, prima facie, that the Fire District was entitled to judgment as a matter of law. Since the defendants failed to meet their prima facie burden as to the Fire District, we need not consider the sufficiency of the plaintiff's opposition 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 properly denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the Fire District.

DILLON, J.P., AUSTIN and WOOTEN, JJ., concur.

BARROS, J., concurs in part and dissents in part, and votes to dismiss the appeal by the defendants John M. Muilenburg and the Commack Fire Department, to reverse the order insofar as appealed from by the defendant Commack Fire District, on the law, and to grant that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Commack Fire District, with the following memorandum:

As it did with the other defendants, the Supreme Court should have applied the reckless disregard standard of care in determining the liability of the defendant Commack Fire District (hereinafter the Fire District) for the accident. Applying the reckless disregard standard of care, the court should have then also granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the Fire District.

"[T]he reckless disregard standard of care [under] 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 ). In their motion for summary judgment, the defendants established, prima facie, that at the time of the accident, the defendant John M. Muilenburg was operating an authorized emergency vehicle, i.e., a fire truck, while involved in an emergency operation, i.e., responding to an alarm of fire, and was engaged in conduct exempted from the rules of the road, i.e., passing through a red light (see Vehicle and Traffic Law § 1104[a], [b] ; Frezzell v. City of New York, 24 N.Y.3d 213, 217, 997 N.Y.S.2d 367, 21 N.E.3d 1028 ). "The manner in which an authorized emergency vehicle is operated in an emergency situation may not form the basis for civil liability absent evidence that the driver acted in reckless disregard for the safety of others" ( Hemingway v. City of New York, 81 A.D.3d 595, 595, 916 N.Y.S.2d 167 ; see Saarinen v. Kerr, 84 N.Y.2d 494, 497, 620 N.Y.S.2d 297, 644 N.E.2d 988 [" Vehicle and Traffic Law 1104(e) precludes the imposition of liability for otherwise privileged conduct except where the conduct rises to the level of recklessness"]; Baker v. City of White Plains, 169 A.D.3d 980,...