| Herod v Mele |
| 2009 NY Slip Op 03582 [62 AD3d 1269] |
| May 1, 2009 |
| Appellate Division, Fourth Department |
| Rudolph V. Herod et al., Respondents, v Michael C. Mele et al.,Appellants, et al., Defendants. |
—[*1] Richard G. Berger, Buffalo, for plaintiffs-respondents.
Appeal from an order of the Supreme Court, Orleans County (James H. Dillon, J.), enteredSeptember 10, 2008 in a personal injury action. The order, insofar as appealed from, denied inpart the motion of defendants Michael C. Mele, County of Orleans, and Orleans County Sheriff'sDepartment for partial summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting that part of the motion for partial summary judgment dismissing the complaint againstdefendant Michael C. Mele and dismissing the complaint against that defendant and as modifiedthe order is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries they sustainedwhen the vehicle operated by plaintiff wife in which plaintiff husband was a passenger collidedwith a police vehicle operated by defendant Michael C. Mele, a Sheriff's Deputy for defendantCounty of Orleans (County). We conclude that Supreme Court erred in denying that part of themotion of Mele, the County, and defendant Orleans County Sheriff's Department (collectively,County defendants) for partial summary judgment dismissing the complaint against Mele, andwe therefore modify the order accordingly. At the time of the collision, Mele was operating apolice vehicle while responding to a dispatch call concerning a fight in progress. We thusconclude that Mele was operating an authorized emergency vehicle while involved in anemergency operation (see Vehicle and Traffic Law §§ 101, 114-b), and thusthat the reckless disregard standard of liability pursuant to Vehicle and Traffic Law § 1104(e), rather than that of ordinary negligence, applies to his actions (see Criscione v City ofNew York, 97 NY2d 152, 157-158 [2001]; Hughes v Chiera, 4 AD3d 872 [2004]). The County defendantsestablished as a matter of law that Mele's conduct did not rise to the level of reckless disregardfor the safety of others (see Szczerbiak v Pilat, 90 NY2d 553, 557 [1997]), and plaintiffsfailed to raise a triable issue of fact in opposition to that part of the motion (see Salzano vKorba, 296 AD2d 393, 394-395 [2002]; see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). The fact that Mele was exceeding the posted speed limit atthe time of the collision "certainly cannot alone constitute a predicate [*2]for liability, [inasmuch as such conduct] is expressly privilegedunder Vehicle and Traffic Law § 1104 (b) (3)" (Saarinen v Kerr, 84 NY2d 494,503 [1994]). Even assuming, arguendo, that Mele was traveling on wet roads without havingactivated the lights and siren on his police vehicle and that he experienced a short-term reductionin visibility of the intersection where the collision occurred, we conclude that those factors alsodo not rise to the level of reckless disregard for the safety of others under the circumstances ofthis case. The record establishes that he had the right-of-way at the intersection, and there is noevidence of any traffic at or near that intersection other than plaintiffs' vehicle (cf. Spalla vVillage of Brockport, 295 AD2d 900, 900-901 [2002]; Allen v Town of Amherst,294 AD2d 828, 829 [2002], lv denied 3 NY3d 609 [2004]). Based on the threat to thesafety of the persons involved in the fight to which Mele was responding, he was duty-bound touse all reasonable means to arrive at the scene as soon as possible (see Saarinen, 84NY2d at 502-503). The risks taken by Mele in responding to the call were justified (seeSzczerbiak, 90 NY2d at 557; Saarinen, 84 NY2d at 503). Finally, the conclusoryassertions in the affidavit of plaintiffs' accident reconstruction expert were insufficient to raise anissue of fact to defeat that part of the motion with respect to Mele (see Gonzalez v 98 MagLeasing Corp., 95 NY2d 124, 129 [2000]; Liccione v Gearing, 252 AD2d 956, 957[1998], lv denied 92 NY2d 818 [1999]). Present—Scudder, P.J., Martoche, Fahey,Peradotto and Green, JJ.