| Katanov v County of Nassau |
| 2012 NY Slip Op 00337 [91 AD3d 723] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Bella Katanov, Appellant, v County of Nassau et al.,Respondents. |
—[*1] John Ciampoli, County Attorney, Mineola, N.Y. (Jackie L. Gross and Nazneen Malik ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Brandveen, J.), entered December 15, 2010, which grantedthe defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
On the morning of October 21, 2008, the plaintiff, a pedestrian, was struck by a police car inthe parking lot of an assisted living facility in the Town of North Hempstead. The police car wasbeing operated by the defendant Scott Blanshan, a Nassau County Police Officer (hereinafter thepolice officer), while he was responding to a 911 call originating from the facility. The plaintiffcommenced this action against the police officer and the defendants County of Nassau andNassau County Police Department. The defendants moved for summary judgment dismissing thecomplaint on the grounds that the police officer's conduct could not form the basis of liability andthat the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d) as a result of the accident. The Supreme Court granted the motion, and the plaintiffappeals. We reverse.
The Supreme Court erred in granting that branch of the defendants' motion which was forsummary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the accident(see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79NY2d 955, 956-957 [1992]). In support of that branch of their motion, the defendants reliedupon, inter alia, the affirmed medical report of Dr. Jerrold M. Gorski, their examining orthopedicsurgeon. Dr. Gorski examined the plaintiff on March 22, 2010, and, during that examination, henoted significant limitations in her shoulders and neck (see Grisales v City of New York, 85 AD3d 964, 965 [2011]; Torres v Torrano, 79 AD3d 1124[2010]; Mondevil v Kumar, 74AD3d 1295, 1296 [2010]; Smith vHartman, 73 AD3d 736 [2010]; Quiceno v Mendoza, 72 AD3d 669 [2010]). Since the defendantsfailed to meet their prima facie burden with respect to the issue of serious [*2]injury, it is unnecessary to determine whether the plaintiff'sopposition papers were sufficient to raise a triable issue of fact in this regard (see Grisales vCity of New York, 85 AD3d at 965; Coscia v 938 Trading Corp., 283 AD2d 538[2001]).
The Supreme Court also erred in granting that branch of the defendants' motion which wasfor summary judgment dismissing the complaint on the ground that the police officer's conductcould not form the basis of liability. In concluding that the actions of the police officer, in theemergency operation of his vehicle, were subject to the reckless disregard standard under Vehicleand Traffic Law § 1104 (e), the Supreme Court failed to apply the correct standard. "[T]hereckless disregard standard of care in Vehicle and Traffic Law § 1104 (e) only applieswhen a driver of an authorized emergency vehicle involved in an emergency operation engages inthe specific conduct exempted from the rules of the road by Vehicle and Traffic Law §1104 (b)" (Kabir v County ofMonroe, 16 NY3d 217, 220 [2011]). "Any other injury-causing conduct of such a driveris governed by the principles of ordinary negligence" (id.). Here, the injury-causingconduct of the police officer, i.e., making a turn into a parking space located within the parkinglot while traveling at approximately two miles per hour, did not fall within any of the categoriesof privileged conduct set forth in Vehicle and Traffic Law § 1104 (b) (see Kabir v County of Monroe, 16NY3d 217 [2011]; Tatishev v Cityof New York, 84 AD3d 656, 657 [2011]). Thus, the plaintiff's claim was governed byprinciples of ordinary negligence.
A driver is negligent when an accident occurs because he or she failed to see that whichthrough the proper use of his or her senses he or she should have seen (see Heath v Liberato, 82 AD3d841 [2011]; Kucar v Town ofHuntington, 81 AD3d 784, 785 [2011]; Dominguez v CCM Computers, Inc., 74 AD3d 728, 729 [2010]; Mohammad v Ning, 72 AD3d 913,915 [2010]). Here, the police officer admitted during his deposition testimony, which thedefendants submitted in support of their motion, that he never saw the plaintiff until after hestruck her with his car as he was trying to park.
Accordingly, because the defendants failed to make a prima facie showing that the policeofficer's conduct could not form the basis of liability, the Supreme Court should have denied thatbranch of their motion which was for summary judgment dismissing the complaint on thatground, regardless of the sufficiency of the plaintiff's opposition papers as to the issue of liability(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
We decline the plaintiff's request to search the record and award her summary judgment onthe issue of liability. Rivera, J.P., Leventhal, Roman and Sgroi, JJ., concur. [Prior CaseHistory: 2010 NY Slip Op 33497(U).]