| Ferrara v Village of Chester |
| 2008 NY Slip Op 09950 [57 AD3d 719] |
| December 16, 2008 |
| Appellate Division, Second Department |
| Robert W. Ferrara, Respondent, v Village of Chester et al.,Appellants, et al., Defendants. (And a Related Action.) |
—[*1] Zeccola & Selinger, LLC, Goshen, N.Y. (John S. Selinger of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants Village of Chester and DavidJ. Hagberg appeal, as limited by their brief, from so much of an order of the Supreme Court, OrangeCounty (Owen, J.), dated November 2, 2007, as denied that branch of the motion of the defendantsVillage of Chester, David J. Hagberg, and Timothy McGuire which was for summary judgmentdismissing the complaint insofar as asserted against the defendants Village of Chester and David J.Hagberg, and the defendant James Thornton appeals from the same order.
Ordered that the appeal by the defendant James Thornton is dismissed as abandoned (see22 NYCRR 670.8 [e] [1]); and it is further,
Ordered that the order is affirmed insofar as appealed from by the defendants Village of Chesterand David J. Hagberg; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The manner in which a police officer operated his or her vehicle in responding to an emergencymay form the basis of civil liability to an injured third party if the officer acted in reckless disregard forthe safety of others (see Vehicle and Traffic Law § 1104 [e]; Criscione v City ofNew York, 97 NY2d 152, 156 [2001]; Saarinen v Kerr, 84 NY2d 494, 501 [1994]).The "reckless disregard" standard requires proof that the officer intentionally committed an act of anunreasonable character in disregard of a known or obvious risk that was so great as to make it highlyprobable that harm would follow (see Campbell v City of Elmira, 84 NY2d 505, 510 [1994];Saarinen v Kerr, 84 NY2d 494 [1994]).[*2]
Here, the appellants Village of Chester and David J. Hagberg(hereinafter the appellants) failed to meet their initial burden of establishing, prima facie, that the policeofficers responding to the emergency did not act in reckless disregard for the safety of others incommencing, conducting, or failing to terminate the high-speed pursuit of another vehicle driven by anindividual suspected of violating his parole and driving with a suspended license, during which thesubject accident occurred (see Burrell v Cityof New York, 49 AD3d 482, 483 [2008]; Shephard v City of New York, 39 AD3d 842 [2007]; see alsoVehicle and Traffic Law § 114-b). The appellants' submissions failed to eliminate questionsof fact as to whether the principal pursuing officer properly informed the central dispatcher of thelocation of the suspect's vehicle and whether the suspect was operating his headlights. Moreover, thereare issues of fact as to whether the pursuing officer or his supervisor should have commenced thepursuit given the minor offenses the suspect was thought to have committed, or terminated the pursuit inlight of the fact that it was conducted at high speeds on curving narrow roads, through a constructionzone and into oncoming traffic, where the suspect vehicle may not have used headlights. Accordingly,the appellants did not establish their entitlement to summary judgment dismissing the complaint insofaras asserted against them (see Campbell v City of Elmira, 84 NY2d at 510-511; Burrell v City of New York, 49 AD3d482 [2008]; McCarthy v City of New York, 250 AD2d 654, 655 [1998]; cf. Spallav Village of Brockport, 295 AD2d 900, 900-901 [2002]).
The appellants' remaining contentions are without merit. The contentions of the defendant TimothyMcGuire are not properly before this Court, as he did not file a notice of appeal and by decision andorder on motion dated February 19, 2008, this Court denied that branch of the motion of McGuire andthe appellants which was for leave to serve an amended notice of appeal adding McGuire as anappellant. Ritter, J.P., Florio, Miller and Dillon, JJ., concur.