Baker v. City of White Plains

169 A.D.3d 980

92 N.Y.S.3d 904 (Mem)

Ulan BAKER, Appellant,

v.CITY OF WHITE PLAINS, et al., Respondents.

2016–08016

Index No. 67962/12

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

Argued—November 8, 2018

February 27, 2019

Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. (Brian J. Isaac, Jillian Rosen, and Brianna Walsh of counsel), for appellant.

Hodges Walsh & Messemer, LLP, White Plains, N.Y. (Paul E. Svensson and Michael Burke of counsel), for respondents.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOSEPH J. MALTESE, BETSY BARROS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Mary H. Smith, J.), dated July 27, 2016, which, after a jury trial, the denial of the plaintiff's motion pursuant to CPLR 4401 for judgment as a matter of law, a jury verdict in favor of the defendants City of White Plains, City of White Plains Police Department, and Mark Burnett on the issue of liability, and the denial of the plaintiff's motion pursuant to CPLR 4404 to set aside the verdict as against the weight of the evidence and for a new trial, is in favor of the defendants and against the plaintiff.

ORDERED that the judgment is affirmed, with costs.

The plaintiff allegedly was injured while a passenger in a vehicle that was struck from behind by a City of White Plains police vehicle driven by the defendant Mark Burnett, a police officer. Burnett testified that, at the time of the accident, he was driving his vehicle in excess of the speed limit, with the lights and siren engaged, while in pursuit of a suspect in another vehicle. When the suspect's vehicle changed lanes, Burnett attempted to follow, but was prevented by the sudden appearance, on his right side, of the vehicle in which the plaintiff was riding. Burnett was unable to avoid colliding with that vehicle.

The driver of an authorized emergency vehicle engaged in an emergency operation is exempt from certain traffic laws under Vehicle and Traffic Law § 1104 (see Criscione v. City of New York, 97 N.Y.2d 152, 156, 736 N.Y.S.2d 656, 762 N.E.2d 342 ; see also Kabir v. County of Monroe, 16 N.Y.3d 217, 920 N.Y.S.2d 268, 945 N.E.2d 461 ). The manner in which a police officer operates his or her vehicle in an emergency situation may not form the basis for civil liability to an injured third party unless the officer acted with reckless disregard for the safety of others (see Vehicle and Traffic Law § 1104[e] ; Saarinen v. Kerr, 84 N.Y.2d 494, 501, 620 N.Y.S.2d 297, 644 N.E.2d 988 ; Quintana v. Wallace, 95 A.D.3d 1287, 945 N.Y.S.2d 366 ). "The ‘reckless disregard’ standard requires proof that the officer intentionally committed 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" ( Ferrara v. Village of Chester, 57 A.D.3d 719, 720, 869 N.Y.S.2d 600 ; see Campbell v. City of Elmira, 84 N.Y.2d 505, 510, 620 N.Y.S.2d 302, 644 N.E.2d 993 ; Saarinen v. Kerr, 84 N.Y.2d at 494, 620 N.Y.S.2d 297, 644 N.E.2d 988 ; Hemingway v. City of New York, 81 A.D.3d 595, 595–596, 916 N.Y.S.2d 167 ; Daly v. County of Westchester, 63 A.D.3d 988, 989, 882 N.Y.S.2d 209 ).

Here, the trial evidence established that Burnett was engaged in an emergency operation at the time of the collision (see Vehicle and Traffic Law § 114–b ), and that Burnett's conduct did not rise to the level of reckless disregard for the safety of others (see Saarinen v. Kerr, 84 N.Y.2d at 501, 620 N.Y.S.2d 297, 644 N.E.2d 988 ; Rincon v. Dusenbury, 106 A.D.3d 974, 974–975, 965 N.Y.S.2d 366 ; Hemingway v. City of New York, 81 A.D.3d at 595–596, 916 N.Y.S.2d 167 ). Thus, we agree with the Supreme Court's denial of the plaintiff's motion pursuant to CPLR 4401 for a...