| Kabir v County of Monroe |
| 2009 NY Slip Op 09737 [68 AD3d 1628] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| Yasmin Kabir, Appellant, v County of Monroe et al.,Respondents. |
—[*1]
Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.),entered September 30, 2008 in a personal injury action. The order, insofar as appealed from,granted those parts of defendants' motion seeking summary judgment dismissing the complaintagainst defendant County of Monroe and dismissing the amended complaint and deniedplaintiff's cross motion seeking partial summary judgment with respect to liability.
It is hereby ordered that the order insofar as appealed from is reversed on the law withoutcosts, those parts of the motion seeking summary judgment dismissing the complaint againstdefendant County of Monroe and dismissing the amended complaint are denied, the complaintagainst defendant County of Monroe and the amended complaint are reinstated and the crossmotion is granted.
Memorandum: Plaintiff commenced these two actions to recover damages for injuries sheallegedly sustained when the vehicle she was driving was struck from behind by a vehicle drivenby defendant John DiDomenico, a Monroe County Deputy Sheriff (hereafter, Deputy).Defendants moved for summary judgment dismissing the complaint and the amended complaint,inter alia, on the ground that as a matter of law the Deputy was not driving with recklessdisregard for the safety of others pursuant to Vehicle and Traffic Law § 1104 (e). Plaintiffcross-moved for partial summary judgment with respect to liability, contending that the Deputywas not entitled to qualified immunity under section 1104 (e) because he was not operating a"police vehicle" within the meaning of section 1104 (c) and was not engaged in an "emergencyoperation" within the meaning of Vehicle and Traffic Law §§ 114-b and 1104 (a) atthe time of the collision. Supreme Court erred in granting those parts of defendants' motionseeking summary judgment dismissing the complaint against defendant County of Monroe(County) and [*2]dismissing the amended complaint and indenying plaintiff's cross motion seeking partial summary judgment on the issue of liability.
The accident occurred when the Deputy received a dispatch to respond to a burglary andlooked down at his mobile data terminal to ascertain the location of the burglarized premises.When he looked back up two to three seconds later, he observed that traffic was moving veryslowly through the intersection that he was approaching. The Deputy immediately applied hisbrakes, but he was unable to avoid a rear-end collision with plaintiff's vehicle. Even assumingthat the Deputy was involved in an emergency operation at the time of the collision (seeVehicle and Traffic Law §§ 114-b, 1104 [a]), we conclude that the "recklessdisregard" standard of liability contained in section 1104 (e) is not applicable to this actionbecause the Deputy's conduct did not fall within any of the four categories of privileged activityset forth in section 1104 (b).
Vehicle and Traffic Law § 1104 (a) provides that the driver of an authorizedemergency vehicle involved in an emergency operation "may exercise the privileges set forth inthis section, but subject to the conditions herein stated." The statute then goes on to list insubdivision (b) those privileges that the driver of an authorized emergency vehicle may exercise,i.e., the driver may (1) stop, stand or park regardless of the provisions of the Vehicle and TrafficLaw; (2) proceed past a steady or flashing red light or stop sign after slowing down to ensure thesafe operation of the vehicle; (3) exceed the maximum speed limits so long as he or she does notendanger life or property; and (4) disregard regulations concerning directions of movements orturning. Subdivision (e) of the statute, which exempts the driver of an authorized emergencyvehicle from liability for ordinary negligence relating to his or her operation of that vehicle,specifically relates back to subdivision (b). Thus, subdivision (e) states that "[t]heforegoing provisions shall not relieve the driver of an authorized emergency vehicle fromthe duty to drive with due regard for the safety of all persons, nor shall such provisions protectthe driver from the consequences of his [or her] reckless disregard for the safety of others"(emphasis added). The "foregoing provisions" referred to in the statute are the four categories ofprivileged activity set forth in section 1104 (b).
Therefore, in accordance with a plain reading of Vehicle and Traffic Law § 1104, thedriver of an emergency vehicle who is engaged in an emergency operation may operate his orher vehicle in violation of the provisions of the Vehicle and Traffic Law so long as his or herconduct falls within one of the four categories of privileged conduct listed in subdivision (b),with two conditions. Despite the fact that the driver is privileged from having to comply with theVehicle and Traffic Law in the four situations set forth above, he or she (1) nevertheless mustoperate the vehicle with due regard for the safety of others, and (2) nevertheless is liable for anyinjuries or consequences caused by his or her reckless disregard for the safety of others whenoperating the vehicle. In effect, the statute exempts a driver whose operation of an emergencyvehicle falls within the four categories of subdivision (b) from the consequences of his of herordinary negligence, rendering him or her liable only for conduct constituting the higher standardof reckless disregard for the safety of others.
Even assuming that the Deputy in this case was involved in an emergency operation at thetime of the accident, we conclude that his conduct did not fall within any of the four categoriesof privileged conduct set forth in subdivision (b). The Deputy was merely traveling in a normalstream of traffic, driving well within the speed limit and in the proper lane of the roadway. Thus,the liability exemption contained in subdivision (e) never became applicable.
The dissent faults our analysis of Vehicle and Traffic Law § 1104 with respect to thiscase on several grounds. First, the dissent concludes that plaintiff for the first time in his replybrief [*3]raised the issue whether the exemption set forth insubdivision (e) applies because the Deputy's conduct did not fall within any of the fourcategories of subdivision (b). Thus, the dissent concludes that the issue is not properly before us.We disagree. Following defendants' assertion of the Vehicle and Traffic Law § 1104 (e)exemption, plaintiff cross-moved for partial summary judgment contending, inter alia, that theissue before the court primarily concerned the applicability of Vehicle and Traffic Law §1104 (e). Thus, defendants were on notice that the applicability of the exemption to the case wasin issue. A determination of that issue necessarily involves an examination of the circumstancesunder which the exemption applies, which in turn necessitates an analysis of the statutoryscheme of Vehicle and Traffic Law § 1104. It consequently is difficult to see how thedefense was "blind sided." Indeed, defendants' assertion of the exemption in itself was sufficientto require an analysis of the statutory scheme of Vehicle and Traffic Law § 1104,inasmuch as it would be impossible to determine whether the Deputy was exempt from liabilityfor ordinary negligence without an analysis of the applicability of that exemption.
The dissent further faults our analysis on the ground that it allegedly is unsupported by aplain reading of the statute. In our view, it is the dissent's analysis that is unsupported by a plainreading of the statute. According to the dissent, the four categories of conduct set forth insubdivision (b) excuse a driver engaged in the emergency operation of an authorized emergencyvehicle from being charged with a traffic violation or from being subject to civil liability basedsolely on those four categories of conduct. Thus, the dissent in effect interprets the exemption ofsubdivision (e) as standing separate and apart from the remainder of the statute. However, thestatute is not drafted in that fashion. Subdivision (a) expressly requires that the varioussubdivisions of the statute be read in conjunction with each other. That subdivision refers to theprivileges that the driver of an authorized emergency vehicle involved in an emergencyoperation enjoys, which privileges are "set forth in this section." Those privileges are thenenumerated in subdivision (b). Subdivision (a) further provides that those privileges are "subjectto the conditions herein stated." After listing in subdivision (b) the four categories of privilegedconduct, the statute goes on to set forth the conditions to which subdivision (a) refers, and theexemption of subdivision (e) is only one of those conditions. Subdivision (e) specifically relatesback to the "foregoing provisions" of the statute, and provides that "such provisions" do notprotect the driver from the consequences of his reckless disregard for the safety of others. Thus,a plain reading of the statute is that subdivision (e) is a condition placed upon the exercise of theprivileges afforded to a driver set forth in subdivision (b). The dissent's conclusion that theexemption covers any and all activity of the driver of an authorized emergency vehicle engagedin an emergency operation disregards the express language of the statute. Had the Legislatureintended Vehicle and Traffic Law § 1104 to apply to all of the rules of the road withoutlimitation to the four categories of section 1104 (b), it would have drafted the statuteaccordingly. Significantly, the Legislature did so in Vehicle and Traffic Law § 1103,which exempts all persons and vehicles "while actually engaged in work on a highway" from theVehicle and Traffic Law provisions (§ 1103 [b]), except for those provisions relating todriving while intoxicated offenses. As the Court of Appeals wrote, " '[w]e have recognized thatmeaning and effect should be given to every word of a statute' " (Criscione v City of NewYork, 97 NY2d 152, 157 [2001]).
The dissent further faults our interpretation of the statute as being illogical. According to thedissent, the Legislature could not have intended that a driver engaging in less culpable conductsuch as that involved in this case would be subject to liability under an ordinary negligencestandard while a driver engaged in more culpable conduct, such as speeding, would be excusedfrom ordinary negligence. We do not agree with the dissent that such a statutory scheme isillogical. As the dissent recognizes, the purpose of the exemption is to afford operators ofemergency vehicles the freedom to perform their duties when responding to an emergencysituation, unhampered by the rules of the road (see Saarinen v Kerr, 84 NY2d 494, [*4]497 [1994]). The four categories of privileged conduct that thestatute in effect excuses from ordinary negligence constitute conduct that is essential to such anemergency response. If the driver of an emergency vehicle is engaged in "normal" driving, i.e.,driving falling outside the four categories of Vehicle and Traffic Law § 1104 (b), there isno reason to excuse him or her from "normal" standards of negligence. Thus, the legislativescheme underlying the reason for the statute's enactment is not unreasonable, as the dissentcontends.
Finally, we cannot agree with the dissent to the extent that it suggests that Saarinenand Criscione endorse the application of the reckless disregard standard any time that thedriver of an authorized emergency vehicle is involved in an emergency operation. The Court ofAppeals in Saarinen discussed and determined the appropriate standard of liabilitypursuant to Vehicle and Traffic Law § 1104 (e), but it did not state that the recklessdisregard standard was applicable in every situation in which the driver of an authorizedemergency vehicle was involved in an emergency operation. In Saarinen, the policeofficer's conduct fell squarely within one of the four categories of subdivision (b), inasmuch asthe officer was driving in excess of the speed limit when the accident occurred. We find itsignificant that the Court of Appeals, when referring to Vehicle and Traffic Law § 1104(e), stated that "[t]his statute establishes the standard for determining an officer's civil liabilityfor damages resulting from the privileged operation of an emergency vehicle" (84 NY2dat 500 [emphasis added]). There was no issue in Saarinen concerning theapplicability of the exemption in subdivision (e) but, rather, the issue concerned thestandard for determining liability pursuant to that exemption.
In Criscione, the Court addressed the issue of whether an officer who wasresponding to a dispatch was involved in an "emergency operation." The officer characterizedthe dispatch as a nonemergency call, and neither activated his siren or lights nor increased hisspeed. He was, however, traveling in excess of the posted speed limit. The Court determinedthat, despite the officer's own characterization of the dispatch, he was involved in an emergencyoperation within the meaning of Vehicle and Traffic Law § 1104, so that the recklessdisregard standard of liability applied. Because the officer's conduct fell within one of the fourcategories of privileged activity of section 1104 (b) (Vehicle and Traffic Law § 1104 [b][3]), the Court had no reason to determine the standard of liability for conduct falling outsidethose four categories.
In this case, as previously noted, the Deputy's conduct did not fall within any of the fourcategories of privileged conduct contained in subdivision (b). The Deputy did not unlawfullypark or stand, proceed past a steady red light or other similar traffic control device, exceed themaximum speed limit or disregard regulations concerning directions of movement or turning(see Vehicle and Traffic Law § 1104 [b] [1]-[4]). Thus, the reckless disregardstandard of subdivision (e) is not applicable. Instead, the applicable standard for determiningliability is the standard of ordinary negligence. Defendants did not establish their entitlement tosummary judgment dismissing the complaint against the County and dismissing the amendedcomplaint as a matter of law pursuant to the ordinary negligence standard of liability. It is wellsettled that a rear-end collision with a vehicle in stop-and-go traffic creates a prima facie case ofnegligence with respect to the operator of the rear vehicle, and that partial summary judgment onliability in favor of the person whose vehicle was rear-ended is appropriate in the absence of anonnegligent explanation for the accident (see Emil Norsic & Son, Inc. v L.P. Transp., Inc., 30 AD3d 368[2006]; Mullen v Rigor, 8 AD3d104 [2004]; see also Mustafaj vDriscoll, 5 AD3d 138, 139 [2004]). Here, in support of their motion, defendants failedto provide a nonnegligent explanation for the rear-end collision, while plaintiff met her burden insupport of her cross motion seeking partial summary judgment on the issue of liability bysubmitting evidence establishing as a matter of law that the vehicle driven by her was rear-endedby the vehicle driven by the Deputy. The court therefore erred in granting those parts ofdefendants' motion seeking summary judgment dismissing the complaint against the County anddismissing the amended complaint and in denying plaintiff's [*5]cross motion (see Jumandeo v Franks, 56 AD3d 614 [2008]; Shelton vRivera, 286 AD2d 587 [2001]; Chiaia v Bostic, 279 AD2d 495 [2001]).
Finally, we reject defendants' contention that the applicable statute of limitations for thisaction is CPLR 215 (1), i.e., one year. We have previously determined that the three-year statuteof limitations set forth in CPLR 214 (5) applies in such actions (see Smelts v O'Hara,302 AD2d 948 [2003]).
All concur except Martoche and Peradotto, JJ., who dissent and vote to affirm in thefollowing memorandum.
Martoche and Peradotto, JJ. (dissenting). We respectfully dissent and would affirm becausewe do not agree with the majority's conclusion that the "reckless disregard" standard of liabilityis not applicable to this action (see Vehicle and Traffic Law § 1104 [e]).
On the afternoon of September 20, 2004, defendant John DiDomenico, a Monroe CountyDeputy Sheriff (hereafter, Deputy), was on routine patrol in a marked police vehicle when hereceived a radio dispatch to respond to a report of a stolen vehicle in Henrietta. While the Deputywas responding to that dispatch, he received a second radio dispatch requesting that a backupunit assist another deputy in responding to a burglary on Leo Road, also in Henrietta. Theburglary was classified as a "priority one" call, which is the highest priority classification. TheDeputy acknowledged receipt of the request for assistance and advised the police dispatcher byradio that he would respond to the request for backup for the burglary before he responded to thestolen vehicle report. A red dispatch signal then flashed on the mobile data terminal (MDT)located inside the Deputy's vehicle. The Deputy touched the MDT screen to view the job card,which displays additional information concerning a dispatch, including the address of theincident and nearby cross streets. Because the Deputy was not familiar with the location of LeoRoad, he looked down at the screen for approximately two to three seconds to view the crossstreets. The Deputy was traveling below the speed limit at that time. When the Deputy lookedback up at the road, he noticed that the traffic in front of him had slowed down. He applied thebrakes of his vehicle, but he was unable to bring the vehicle to a complete stop beforerear-ending the vehicle driven by plaintiff.
On these facts, the majority concludes that the Deputy is not entitled to the heightenedstandard of liability afforded to drivers of authorized emergency vehicles under Vehicle andTraffic Law § 1104 (e), i.e., the reckless disregard standard, as opposed to that of ordinarynegligence. We cannot agree with the majority. The Deputy was operating an "authorizedemergency vehicle" within the meaning of Vehicle and Traffic Law § 101 and wasengaged in an "emergency operation" within the meaning of Vehicle and Traffic Law§§ 114-b and 1104 (a) at the time of the collision. Thus, in our view, the Deputy isentitled to the benefits of Vehicle and Traffic Law § 1104, including the protection fromcivil liability in the absence of conduct demonstrating reckless disregard for the safety of others(§ 1104 [e]; see Criscione v City of New York, 97 NY2d 152, 158 [2001]).
Initially, we note that the contention upon which the majority relies in itsdecision—i.e., that the reckless disregard standard of liability contained in Vehicle andTraffic Law § 1104 (e) does not apply to this action because the Deputy's conduct did notfall within any of the four categories of privileged conduct set forth in section 1104(b)—was not raised by plaintiff in Supreme Court. Indeed, that contention was raised forthe first time in plaintiff's reply brief and thus is not properly before us (see Matter of State ofNew York v Zimmer [appeal No. 4], 63 AD3d 1563 [2009]; Turner v Canale, 15 AD3d 960[2005], lv denied 5 NY3d 702 [2005]), inasmuch as neither defendants nor the motioncourt were afforded the opportunity to address it. In the motion court, plaintiff contended that theDeputy was not entitled to qualified immunity under Vehicle and Traffic Law § 1104 (e)for two reasons only: (1) that the Deputy's road patrol car was not a "police vehicle" within the[*6]meaning of section 1104 (c), and (2) that the Deputy was notengaged in an "emergency operation" at the time of the accident. It is beyond dispute that thepurpose of the preservation rule is to enable an opposing party to respond to a particularargument and to enable the court deciding the matter in the first instance to address theargument. As the Court of Appeals recently reiterated, "[w]e are not in the business ofblindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties,not arguments their adversaries never made" (Misicki v Caradonna, 12 NY3d 511, 519 [2009]).
With respect to the merits, the majority assumes only for the sake of argument that theDeputy was engaged in an "emergency operation" at the time of the collision (seeVehicle and Traffic Law §§ 114-b, 1104 [a]). In our view, however, there is noquestion that the Deputy was engaged in an emergency operation at the time of the accident."Prevailing case law leaves no doubt that a police officer in a patrol vehicle responding to apolice call or dispatch is engaged in an emergency operation within the meaning of Vehicle andTraffic Law § 114-b" (O'Bannerv County of Sullivan, 16 AD3d 950, 952 [2005]; see Vehicle and Traffic Law§ 114-b [defining "emergency operation" as the operation "of an authorized emergencyvehicle, when such vehicle is . . . responding to" a police call]; Criscione,97 NY2d at 157-158; Hughes vChiera, 4 AD3d 872 [2004]). Indeed, as we wrote in Allen v Town of Amherst (8 AD3d 996, 997 [2004]), "all policeofficers in patrol vehicles responding to police calls are involved in an emergency operationwithin the meaning of Vehicle and Traffic Law § 114-b." At the time of the accident, theDeputy was operating a patrol vehicle and was responding to a police dispatch concerning apotential burglary in progress. He was therefore involved in an "emergency operation" within themeaning of the statute (see id.).
We further respectfully disagree with the conclusion of the majority that the recklessdisregard standard of liability is limited to conduct falling within the "four categories ofprivileged activity set forth in section 1104 (b)." In our view, the majority's conclusion isunsupported by a plain reading of the statute and runs contrary to the legislative purpose ofsection 1104. Vehicle and Traffic Law § 1104 (a) provides that "[t]he driver of anauthorized emergency vehicle, when involved in an emergency operation, may exercise theprivileges set forth in this section, but subject to the conditions herein stated." Section 1104 (b)provides that the driver of an authorized emergency vehicle may engage in certain conduct thatwould otherwise constitute a violation of the Vehicle and Traffic Law including, inter alia,proceeding past a red light or stop sign without coming to a complete stop, exceeding themaximum speed limit, and driving the wrong way down a street. Finally, section 1104 (e) statesgenerally that "[t]he foregoing provisions shall not relieve the driver of an authorized emergencyvehicle from the duty to drive with due regard for the safety of all persons, nor shall suchprovisions protect the driver from the consequences of his reckless disregard for the safety ofothers."
As is clear from the terms of Vehicle and Traffic Law § 1104, read as a whole, section1104 (b) does not exempt a driver of an emergency vehicle from liability when engaged in theconduct set forth therein; rather, that subdivision gives statutory permission to engage in suchconduct. As a consequence, a police officer who is speeding or drives through a red light whileresponding to an emergency may not be charged with a traffic violation and is not subject to civilliability on that basis alone (see Saarinen v Kerr, 84 NY2d 494, 503 [1994]; Turini v County of Suffolk, 8 AD3d260, 262 [2004], lv denied 3 NY3d 611 [2004]; Herod v Mele, 62 AD3d 1269, 1270 [2009]). The statute does notexpressly provide, nor in our view can it be fairly implied therefrom, that engaging in conductother than that enumerated in Vehicle and Traffic Law § 1104 (b) automatically subjects apolice officer to an ordinary negligence standard. To the contrary, the exemption from liability iscontained in section 1104 (e) (see Saarinen, 84 NY2d at 497), and it is for any conductthat does not rise to the level of recklessness (see Criscione, 97 NY2d at 158), regardlessof whether such conduct is expressly privileged by Vehicle and Traffic Law § 1104 (b).[*7]
In our view, the construction of Vehicle and Traffic Law§ 1104 endorsed by the majority undermines the legislative purpose of the statute, "i.e.,affording operators of emergency vehicles the freedom to perform their duties unhampered bythe normal rules of the road" (Saarinen, 84 NY2d at 502; see also Ayers vO'Brien, 13 NY3d 456 [2009]), and would thus lead to an unintended and undesirable result.As the Court of Appeals explained in Saarinen, "use of the undemanding ordinarynegligence test . . . would lead to judicial 'second-guessing' of the manysplit-second decisions that are made in the field under highly pressured conditions. Further, thepossibility of incurring civil liability for what amounts to a mere failure of judgment could deteremergency personnel from acting decisively and taking calculated risks in order to save life orproperty or to apprehend miscreants. The 'reckless disregard' test, which requires a showing ofmore than a momentary judgment lapse, is better suited to the legislative goal of encouragingemergency personnel to act swiftly and resolutely while at the same time protecting the public'ssafety to the extent practicable" (84 NY2d at 502). That reasoning applies with equal force to thefacts of this case. Under the majority's construction of the statute, the conduct of the Deputywould be measured according to the reckless disregard standard of liability had he been speedingor had he collided with plaintiff's vehicle while running a red light or a stop sign. By starkcontrast, however, the majority's construction of the statute renders his comparatively lessculpable conduct—i.e., taking his eyes off the road for a matter of seconds to ascertain thelocation of the burglarized premises—subject to liability under an ordinary negligencestandard. Such a construction cannot be what the Legislature intended in enacting the statute. Itis axiomatic that statutes are to be "given a reasonable construction, it being presumed that areasonable result was intended by the Legislature" (McKinney's Cons Laws of NY, Book 1,Statutes § 143), and that "[t]he primary consideration of the courts in the construction ofstatutes is to ascertain and give effect to the intention of the Legislature" (§ 92[a]).[FN*]
Significantly, New York courts—including the Court of Appeals—have notlimited the application of the reckless disregard standard to cases that involve the conduct listedin Vehicle and Traffic Law § 1104 (b) and, in fact, have applied that heightened standardto cases involving facts similar to the case at bar (see e.g. Szczerbiak v Pilat, 90 NY2d553, 557 [1997] [applying reckless disregard standard where police officer struck the plaintiffs'decedent while glancing down momentarily to activate his emergency lights and headlights];O'Banner, 16 AD3d at 952 [deputy's actions properly measured according to recklessdisregard standard where deputy, who was not speeding, collided with a vehicle after lookingover his shoulder in an attempt to identify a passing vehicle]; Hughes, 4 AD3d 872[2004] [applying reckless disregard standard where collision occurred while police officerlooked down to replace his microphone after responding to a radio dispatch]; see also Martinv Miller, 255 AD2d 816, 817 [1998] [plaintiffs contended that the "reckless disregard"standard [*8]did not apply because the officer was not speedingand the use of his lights constituted an unprivileged violation of Vehicle and Traffic Law §375 (3) and that contention was rejected by court]).
Moreover, this Court has consistently held that the only conditions that must be present inorder to apply the reckless disregard standard of liability under section 1104 (e) are that theofficer is operating an authorized emergency vehicle and that he or she is engaged in anemergency operation (see e.g. Herod, 62 AD3d at 1270; Yerdon v County of Oswego, 43AD3d 1437 [2007]; Sierk vFrazon, 32 AD3d 1153, 1155 [2006]; Palmer v City of Syracuse, 13 AD3d 1229 [2004]; Hughes,4 AD3d 872 [2004]). Other courts have similarly interpreted the statute (see e.g. Gonyea v County of Saratoga,23 AD3d 790 [3d Dept 2005]; Rodriguez v Incorporated Vil. of Freeport, 21 AD3d 1024 [2dDept 2005]). Plaintiff has not cited, nor have we found, a single case restricting the applicationof Vehicle and Traffic Law § 1104 (e) to cases involving conduct that falls within the fourcategories of privileged activity set forth in section 1104 (b). We see no reason to depart fromwell-settled case law in order to carve out an exception to the applicability of the recklessdisregard standard of liability under the facts of this case.
We thus conclude that, inasmuch as the accident occurred while the Deputy was operating apolice vehicle and while he was engaged in an emergency operation, his conduct should bemeasured according to the reckless disregard standard of liability set forth in section 1104 (e),not ordinary negligence (see Vehicle and Traffic Law § 1104 [a], [e]; seegenerally Herod, 62 AD3d at 1270). Even in the event that it can be said that the Deputy wasnegligent in briefly taking his eyes off the road to ascertain the location of the burglarizedpremises, that " 'momentary judgment lapse' [would] not alone rise to the level of recklessnessrequired of the driver of an emergency vehicle in order for liability to attach"(Szczerbiak, 90 NY2d at 557). We therefore would affirm the order.Present—Scudder, P.J., Martoche, Peradotto, Carni and Gorski, JJ. [Prior CaseHistory: 21 Misc 3d 1107(A), 2008 NY Slip Op 52000(U).]
Footnote *: We note that the majority'sconstruction of the statute will also lead to the presumably unintended result that operators ofsnow plows and road crew vehicles are exempt from all rules of the road and their liabilitylimited to reckless conduct (see Vehicle and Traffic Law § 1103 [b]; Riley vCounty of Broome, 95 NY2d 455, 459-461 [2000]), while operators of authorizedemergency vehicles who arguably serve a greater public purpose will be entitled to the protectionof Vehicle and Traffic Law § 1104 (e) only in situations in which they engage in theconduct specified in section 1104 (b).