| Yerdon v County of Oswego |
| 2007 NY Slip Op 07256 [43 AD3d 1437] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| Kevin Yerdon, Respondent, v County of Oswego,Appellant. |
—[*1] Powers & Santola, LLP, Albany (Laura M. Jordan of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Oswego County (James W. McCarthy, A.J.),entered October 11, 2006 in a personal injury action. The judgment, after a nonjury trial, wasentered in favor of plaintiff and against defendant in the amount of $187,500, together withinterest, costs and disbursements.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed without costs.
Memorandum: Defendant appeals from a judgment that, following a bench trial, awardedplaintiff damages for injuries he sustained when a vehicle driven by a county sheriff's deputystruck him as he was crossing the road. The deputy was pursuing a speeding vehicle, and weagree with defendant that, because the deputy was engaged in an emergency operation within themeaning of Vehicle and Traffic Law § 1104 (b), Supreme Court erred in determining thatdefendant was not entitled to the benefit of that statute (see § 114-b; see alsoSaarinen v Kerr, 84 NY2d 494 [1994]). The deputy's own testimony characterizing the chaseas a nonemergency operation is of no moment (see Criscione v City of New York, 97NY2d 152, 158 [2001]).
We agree with the court, however, that the evidence established that the deputy actedwith "reckless disregard for the safety of others" (Vehicle and Traffic Law § 1104 [e]), andthat defendant therefore was not shielded by the provisions of section 1104 (b). Viewing theevidence in this bench trial in the light most favorable to plaintiff, the prevailing party (see Rauh v Conti, 16 AD3d 1144,1144-1145 [2005]), we conclude that the court's determination that the deputy's actions were aproximate cause of the accident and the court's apportionment of liability are supported by a fairinterpretation of the evidence (see Farace v State of New York, 266 AD2d 870 [1999]).The record does not support defendant's contention, which is based merely on "strong suspicion,"that the court gave improper weight to the death of plaintiff's girlfriend in the same accident indetermining plaintiff's emotional damages (see generally Trombetta v Conkling, 82NY2d 549, 553-554 [1993]). Indeed, the court expressly stated that plaintiff's emotional andphysical injuries were caused contemporaneously, when the deputy struck plaintiff with a vehicletraveling at an excessive rate of speed. We conclude that the award for physical and emotionaldamages was proper (see generally Johnson v State of New York, 37 NY2d 378, 381[1975]), [*2]and that the award does not "deviate[ ] materiallyfrom what would be reasonable compensation" (CPLR 5501 [c]). Present—Scudder, P.J.,Hurlbutt, Lunn, Fahey and Pine, JJ.