| Corallo v Martino |
| 2009 NY Slip Op 00496 [58 AD3d 792] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Tracy L. Corallo et al., Respondents, v Paul Martino et al.,Appellants, et al., Defendants. |
—[*1] Andrew John Calcagno, Staten Island, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendants Paul Martino,Staten Island Rapid Transit Operating Authority, City of New York Metropolitan TransportationAuthority, and New York City Transit Authority appeal from an order of the Supreme Court,Richmond County (Gigante, J.), dated October 5, 2007, which denied their motion for summaryjudgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
Pursuant to Vehicle and Traffic Law § 1104, drivers of "authorized emergencyvehicles" have a qualified privilege to disregard certain traffic laws during an emergencyoperation (see Vehicle and Traffic Law § 1104 [b] [1]-[4]; Szczerbiak v Pilat,90 NY2d 553, 553 [1997]). An officer's conduct during such an emergency operation maynot form the basis of civil liability to an injured third party unless the officer acted in recklessdisregard for the safety of others (see Vehicle and Traffic Law § 1104 [e];Saarinen v Kerr, 84 NY2d 494, 501 [1994]; Shephard v City of New York, 39 AD3d 842 [2007]; Badalamenti v City of New York, 30AD3d 452 [2006]; Rodriguez vIncorporated Vil. of Freeport, 21 AD3d 1024 [2005]; Molinari v City of New York,267 AD2d 436 [1999]). The "reckless disregard" standard requires proof that the officerintentionally committed an act of an unreasonable character in disregard of a known or obviousrisk that was so great as to make it highly probable that harm would follow (see Szczerbiak vPilat, 90 NY2d at 557; Campbell v City of Elmira, 84 NY2d 505, 511 [1994];Saarinen v Kerr, 84 NY2d at 501; Burrell v City of New York, 49 AD3d 482 [2008]; Puntarich v County of Suffolk, 47AD3d 785 [2008]).[*2]
Here, even accepting the appellants' contention that theappellant police officer Paul Martino was operating his police vehicle during an emergencyoperation, the appellants failed to establish, prima facie, that Officer Martino did not act inreckless disregard for the safety of others when he entered the subject intersection. Pursuant toVehicle and Traffic Law § 1104 (b) (2), "[t]he driver of an authorized emergency vehiclemay . . . [p]roceed past a steady red signal . . . but only after slowingdown as may be necessary for safe operation." The appellants' submissions in support of theirmotion failed to eliminate questions of fact as to whether Officer Martino slowed down hispolice vehicle prior to entering the intersection against a red light, checked for oncoming trafficbefore entering the intersection, and activated the siren on his vehicle before proceeding into theintersection. Accordingly, the appellants did not establish their entitlement to summary judgmentdismissing the complaint insofar as asserted against them (see Burrell v City of New York, 49 AD3d 482 [2008]; Badalamenti v City of New York, 30AD3d 452 [2006]; see also Baines v City of New York, 269 AD2d 309 [2000];Gordon v County of Nassau, 261 AD2d 359 [1999]). Since the appellants did not meettheir initial burden, we need not review the sufficiency of the plaintiffs' opposition papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Skelos, J.P.,Santucci, McCarthy and Dickerson, JJ., concur.