| Daly v County of Westchester |
| 2009 NY Slip Op 05284 [63 AD3d 988] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Irene Daly, as Administrator of the Estate of John K. Sonnechsen,Appellant, v County of Westchester et al., Respondents, et al., Defendants. (And aThird-Party Action.) |
—[*1] Charlene M. Indelicato, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz andMartin G. Gleeson of counsel), for respondents County of Westchester and Westchester CountyPolice Department. Frank J. Rubino, Corporation Counsel, Yonkers, N.Y. (Michael Levinson and Neal Kumarof counsel), for respondents City of Yonkers and Yonkers Police Department. Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains, N.Y. (John M. Flanneryand Danielle L. Pennetta of counsel), for respondents Town of Eastchester and EastchesterPolice Department.
In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from (1)an order of the Supreme Court, Westchester County (Jamieson, J.), entered June 7, 2007, whichgranted the separate motions of the defendants County of Westchester and Westchester PoliceDepartment, the defendants City of Yonkers and Yonkers Police Department, and the defendantsTown of Eastchester and Eastchester Police Department for summary judgment dismissing thecomplaint insofar as asserted against each of them, and (2) a judgment of the same court enteredJune 14, 2007, which, upon so much of the order as granted the motion of the defendants Townof Eastchester and Eastchester Police Department for summary judgment dismissing thecomplaint insofar as asserted against them, is in favor of those defendants and against theplaintiff dismissing the complaint insofar as asserted against them.
Ordered that the appeal from so much of the order as granted the motion of the defendantsTown of Eastchester and Eastchester Police Department for summary judgment [*2]dismissing the complaint insofar as asserted against them isdismissed; and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants appearing separately and filingseparate briefs.
The appeal from so much of the order as granted the motion of the defendants Town ofEastchester and Eastchester Police Department for summary judgment dismissing the complaintinsofar as asserted against them must be dismissed because the right of direct appeal therefromterminated with the entry of the judgment (see Matter of Aho, 39 NY2d 241 [1976]). Theissues raised on the appeal from that part of the order are brought up for review and have beenconsidered on the appeal from the judgment (see CPLR 5501 [a] [1]).
"The manner in which a police officer operates his or her vehicle in responding to anemergency call may not form the basis for civil liability to an injured third party unless theofficer acted in reckless disregard for the safety of others" (Badalamenti v City of New York,30 AD3d 452, 452 [2006]; see Saarinen v Kerr, 84 NY2d 494, 501 [1994];Rodriguez v Incorporated Vil. of Freeport, 21 AD3d 1024 [2005]; Turini v County ofSuffolk, 8 AD3d 260 [2004]; Molinari v City of New York, 267 AD2d 436 [1999];Vehicle and Traffic Law § 1104 [e]). "The 'reckless disregard' standard requires proof thatthe officer intentionally committed an act of an unreasonable character in disregard of a knownor obvious risk that was so great as to make it highly probable that harm would follow"(Badalamenti v City of New York, 30 AD3d at 453), and did so with consciousindifference to the outcome (see Saarinen v Kerr, 84 NY2d at 501).
Here, the respondents established their prima facie entitlement to judgment as a matter oflaw by demonstrating that the subject police officers' conduct did not rise to the level of recklessdisregard for the safety of others. In opposition, the plaintiff failed to raise a triable issue of fact(see Shephard v City of New York, 39 AD3d 842, 843 [2007]; Teitelbaum v City ofNew York, 300 AD2d 649, 650 [2002]; Demutiis v City of New York, 253 AD2d734, 735 [1998]; DeLeonardis v Port Wash. Police Dist., 237 AD2d 322 [1997];Young v Village of Lynbrook, 234 AD2d 455 [1996]; Powell v City of MountVernon, 228 AD2d 572, 573-574 [1996]; cf. Spalla v Village of Brockport, 295AD2d 900 [2002]). Accordingly, the Supreme Court properly granted the motions for summaryjudgment dismissing the complaint insofar as asserted against the respondents. Mastro, J.P.,Florio, Eng and Leventhal, JJ., concur.