| Woodard v Thomas |
| 2010 NY Slip Op 07332 [77 AD3d 738] |
| October 12, 2010 |
| Appellate Division, Second Department |
| Joseph L. Woodard, Appellant, v Darrell K. Thomas et al.,Respondents. |
—[*1] Billig Law, P.C. New York, N.Y. (Darin Billig of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of theSupreme Court, Kings County (Jacobson, J.), dated April 24, 2009, which, upon an order of the samecourt dated January 8, 2009, granting the defendants' motion for summary judgment dismissing thecomplaint and, in effect, denying his cross motion to strike the defendants' answer or to compeldiscovery, is in favor of the defendants and against him dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The manner in which an authorized emergency vehicle is operated in an emergency situation maynot form the basis for civil liability unless the driver acted in reckless disregard for the safety of others(see Vehicle and Traffic Law § 1104; Saarinen v Kerr, 84 NY2d 494, 501[1994]; Puntarich v County of Suffolk,47 AD3d 785, 786 [2008]; Shephard vCity of New York, 39 AD3d 842 [2007]). " 'The "reckless disregard" standard requiresproof that the [driver] intentionally committed an act of an unreasonable character in disregard of aknown or obvious risk that was so great as to make it highly probable that harm would follow' "(Puntarich, 47 AD3d at 786; see Saarinen v Kerr, 84 NY2d at 501;Shephard, 39 AD3d at 842; Badalamenti v City of New York, 30 AD3d 452, 453 [2006]).
Here, the defendants established their prima facie entitlement to judgment as a matter of law. Theydemonstrated that, at the time of the collision between the vehicle operated by the plaintiff and theambulance operated by the defendant Darrell K. Thomas and owned by the defendant AssociatedAmbulance Service, Inc., doing business as American Medical Response, Thomas was "engaged intransporting a sick . . . person," such that he was engaged in an "[e]mergency operation"as defined by statute (Vehicle and Traffic Law § 114-b; see Criscione v City of NewYork, 97 NY2d 152, 157-158 [2001]). The defendants further demonstrated that, even assumingthat the ambulance entered the intersection in which the accident occurred against the traffic light,Thomas' conduct did not rise to the level of reckless disregard for the safety of others (seePuntarich, 47 AD3d at 786; Shephard, 39 AD3d at 843; Salzano v Korba, 296AD2d 393, 394 [2002]). Notably, the defendants' evidence demonstrated that Thomas slowed downand looked both ways as he approached the intersection with the ambulance's emergency lights andsiren activated (see Daniels v City of NewYork, 28 AD3d 415 [2006]). In opposition, the plaintiff failed to raise a triable issue of fact(see Puntarich, 47 AD3d at 786; Shephard, 39 AD3d at 843).
Further, contrary to the plaintiff's contention, the defendants' motion for summary judgmentdismissing the complaint was not premature as the plaintiff "failed to offer an evidentiary basis to suggestthat [further] discovery may lead to relevant evidence" (Conte v Frelen Assoc., LLC, 51 AD3d 620, 621 [2008]; see Lopez v WS Distrib., Inc., 34 AD3d759 [2006]; Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615[1999]). The "mere hope or speculation that evidence sufficient to defeat a motion for summaryjudgment may be uncovered" by further discovery is an insufficient basis for denying the motion(Lopez v WS Distrib. Inc., 34 AD3d at 760; see Conte v Frelen Assoc., 51 AD3d at621; Min Whan Ock v City of NewYork, 34 AD3d 542 [2006]).
In light of our determination, we need not reach the plaintiff's remaining contentions. Rivera, J.P.,Skelos, Chambers and Roman, JJ., concur.