| Tatishev v City of New York |
| 2011 NY Slip Op 04383 [84 AD3d 656] |
| May 26, 2011 |
| Appellate Division, First Department |
| Sergey Tatishev et al., Respondents, v City of New York,Appellant, et al., Defendant. |
—[*1] Sullivan Papain Block McGrath & Cannavo P.C., New York (Stephen C. Glasser ofcounsel), for respondents.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered August 28, 2009,which denied defendants' motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
After this appeal was argued, the Court of Appeals clarified that "the reckless disregardstandard of care in Vehicle and Traffic Law § 1104 (e) only applies when a driver of anauthorized emergency vehicle involved in an emergency operation engages in the specificconduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b)" (Kabir v County of Monroe, 16 NY3d217, 220 [2011]). "Any other injury-causing conduct of such a driver is governed by theprinciples of ordinary negligence" (id.). Here, the injury-causing conduct of the policedriver—making a left turn at a green light, within the speed limit, and not contrary to anyrestriction on movement or turning—does not fall within any of the categories ofprivileged conduct set forth in Vehicle and Traffic Law § 1104 (b). Accordingly, plaintiffs'claim is governed by principles of ordinary negligence, whether or not the police driver wasresponding to an emergency. Because the record presents a triable issue as to whether the policedriver was negligent when his vehicle struck the pedestrian plaintiff in the crosswalk, we affirmthe denial of defendants' motion for summary judgment. Concur—Tom, J.P., Friedman,Catterson, Renwick and Abdus-Salaam, JJ.