Thompson v. City of New York

210 A.D.3d 1031

179 N.Y.S.3d 682

Jamie THOMPSON, respondent,

v.CITY OF NEW YORK, appellant, et al., defendants.

2019-11115, 2019-11116

Index No. 704686/15

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

Argued—October 7, 2022

November 23, 2022

Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Claude S. Platton and Janet L. Zaleon of counsel), for appellant.

Edward W. Armstrong, P.C. (Berson & Budashewitz, New York, NY [Jeffrey A. Berson ], of counsel), for respondent.

BETSY BARROS, J.P., VALERIE BRATHWAITE NELSON, CHERYL E. CHAMBERS, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant City of New York appeals from (1) an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered August 28, 2019, and (2) an order of the same court, also entered August 28, 2019. The first order, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on so much of the third cause of action, which sought to recover damages against the defendant City of New York pursuant to General Municipal Law § 205–e, as was predicated upon violations of Vehicle and Traffic Law §§ 1110, 1111, and 1140, and denied, as academic, that branch of the motion of the defendant City of New York which was to quash a subpoena duces tecum served upon it by the plaintiff. The second order, insofar as appealed from, in effect, denied, as academic, that branch of that defendant's separate motion which was for summary judgment dismissing the third cause of action.

ORDERED that the first order is reversed insofar as appealed from, on the law, that branch of the plaintiff's motion which was for summary judgment on the issue of liability on so much of the third cause of action as was predicated upon violations of Vehicle and Traffic Law §§ 1110, 1111, and 1140 is denied, and the matter is remitted to the Supreme Court, Queens County, for a determination on the merits of that branch of the motion of the defendant City of New York which was to quash a subpoena duces tecum served upon it by the plaintiff; and it is further,

ORDERED that the second order is reversed insofar as appealed from, on the law, that branch of the separate motion of the defendant City of New York which was for summary judgment dismissing the third cause of action is denied on the merits; and it is further,

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

On March 3, 2014, the plaintiff, a New York City police officer, was on patrol in a police vehicle operated by her partner, Richad Benbow. The police vehicle collided with a vehicle operated by the defendant Yafa Ilyaich at the intersection of 150th Street and Melbourne Avenue in Queens, which was controlled by a traffic light. The collision occurred when Benbow, who had been traveling north on 150th Street, entered the intersection against a red light and began to make a left turn into the westbound lane of Melbourne Avenue to pursue a vehicle based upon that vehicle's suspected violation of the law prohibiting excessively tinted windows (see Vehicle and Traffic Law § 375[12–a][b] ). The police vehicle came into contact with Ilyaich's vehicle, which had entered the intersection in the westbound lane of Melbourne Avenue with a green light in its favor.

The plaintiff commenced this personal injury action against, among others, Ilyaich and the defendant City of New York, alleging in the third cause of action that the City was liable under General Municipal Law § 205–e based upon, among other things, Benbow's violations of certain sections of the Vehicle and Traffic Law. Subsequently, the plaintiff moved, inter alia, for summary judgment on the issue of liability on the third cause of action. The City moved, among other things, for summary judgment dismissing that cause of action, contending that Benbow's conduct in operating the police vehicle was governed by the reckless disregard standard of care in Vehicle and Traffic Law § 1104, and that Benbow did not act with reckless disregard for the safety of others. In a separate motion, the City moved, inter alia, to quash a subpoena duces tecum served upon it by the plaintiff.

In an order entered August 28, 2019, the Supreme Court, among other things, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability on so much of the third cause of action as was predicated upon violations of Vehicle and Traffic Law §§ 1110, 1111, and 1140, and denied, as academic, that branch of the City's motion which was to quash the subpoena. In a second order entered August 28, 2019, the court, inter alia, in effect, denied, as academic, that branch of the City's separate motion which was for summary judgment dismissing the third cause of action. The City appeals from both orders.

" Vehicle and Traffic Law § 1104 provides a qualified exemption to drivers of authorized emergency vehicles from certain traffic laws when they are involved in an emergency operation" ( Fuchs v. City of New York, 186 A.D.3d 459, 459, 126 N.Y.S.3d 652 ; see Frezzell v. City of New York, 24 N.Y.3d 213, 217, 997 N.Y.S.2d 367, 21 N.E.3d 1028 ; Anderson v. Suffolk County Police Dept., 181 A.D.3d 765, 766, 121 N.Y.S.3d 304 ). An "emergency operation" is defined as, among other things, "pursuing an actual or suspected violator of the law" ( Vehicle and Traffic Law § 114–b ; see Anderson v. Suffolk County Police Dept., 181 A.D.3d at 766, 121 N.Y.S.3d 304 ). "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...