| Nurse v City of New York |
| 2008 NY Slip Op 08465 [56 AD3d 442] |
| November 5, 2008 |
| Appellate Division, Second Department |
| Phillis Nurse et al., Respondents, v City of New York etal., Appellants, et al., Defendants. |
—[*1] The Pagan Law Firm, P.C., New York, N.Y. (Tania M. Pagan and Candice A. Pleiss ofcounsel), for respondents.
In an action to recover damages for wrongful death, etc., the defendants City of New York,John Doe #1, and John Doe #2 appeal from an order of the Supreme Court, Kings County(Hinds-Radix, J.), dated February 23, 2007, which denied their motion for summary judgmentdismissing the complaint insofar as asserted against them.
Ordered that the order is reversed, on the law, with costs, and the appellants' motion forsummary judgment dismissing the complaint insofar as asserted against them is granted.
On the evening of October 27, 1995 an Oldsmobile collided with the vehicle of the plaintiffs'decedent Junior Nurse and crashed into a bodega at the intersection of Vermont and LivoniaAvenues in Brooklyn. Prior to the accident, the Oldsmobile, which had been stolen, had beenpursued for more than one-half mile by two police officers. However, the pursuit ended when theofficers lost sight of the vehicle on Linden Boulevard.
The plaintiffs commenced this action to recover damages, inter alia, for wrongful deathalleging, among other things, that the officers, designated as John Doe #1 and John Doe #2, actedwith reckless disregard for the safety of others and thereby caused the decedent's death. TheSupreme Court denied the appellants' motion for summary judgment dismissing the complaint[*2]insofar as asserted against them. We reverse.
A police officer's conduct in pursuing a suspected lawbreaker may not form the basis of civilliability to an injured third party unless the officer acted with reckless disregard for the safety ofothers (see Vehicle and Traffic Law § 1104 [e]; Saarinen v Kerr, 84 NY2d494, 501 [1994]; Williams v City of New York, 240 AD2d 734 [1997]; Powell v Cityof Mount Vernon, 228 AD2d 572 [1996]). This "reckless disregard" standard requiresevidence that the officer must have "intentionally done an act of an unreasonable character indisregard of a known or obvious risk that was so great as to make it highly probable that harmwould follow and has done so with conscious indifference to the outcome" (Saarinen vKerr, 84 NY2d at 501 [internal quotation marks omitted]).
Contrary to the conclusion reached by the Supreme Court, the appellants established theirprima facie entitlement to judgment as a matter of law by demonstrating that the police officersinvolved in the pursuit of the stolen Oldsmobile did not act with reckless disregard for the safetyof others. In any event, the proximate cause of the accident was the independent recklessness ofthe driver of the Oldsmobile, and not the police officers' conduct in initiating the pursuit of theOldsmobile (see Jessop v City of Niagara Falls, 247 AD2d 902, 903 [1998]; Dibble vTown of Rotterdam, 234 AD2d 733, 736 [1996]; Paige v Rocco, 214 AD2d 662, 663[1995]). The officers both testified at their depositions that the pursuit ended when they lost sightof the vehicle prior to the accident and that, when they heard through a radio transmission thatthe Oldsmobile was involved in an accident, it took them between 10 and 15 minutes to get to theaccident scene. In opposition, the plaintiffs failed to raise a triable issue of fact. Under thesecircumstances, the appellants' motion for summary judgment dismissing the complaint insofar asasserted against them should have been granted (see Saarinen v Kerr, 84 NY2d at 494;Young v Village of Lynbrook, 234 AD2d 455 [1996]; Rightmyer v State of NewYork, 108 AD2d 1047, 1048 [1985]).
In light of our determination, we need not address the plaintiffs' remaining contention.Spolzino, J.P., Ritter, Santucci and Carni, JJ., concur.