| Quintana v Wallace |
| 2012 NY Slip Op 04142 [95 AD3d 1287] |
| May 30, 2012 |
| Appellate Division, Second Department |
| Luis Quintana, Respondent, v Maurice Wallace et al.,Defendants, and County of Suffolk, Appellant. |
—[*1] Sarisohn, Sarisohn, Carner, LeBow and DeVita (Lisa M. Comeau, Garden City, N.Y., ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendant County of Suffolkappeals from an order of the Supreme Court, Suffolk County (Jones, Jr., J.), entered April 6,2011, which denied its motion for summary judgment dismissing the complaint insofar asasserted against it.
Ordered that the order is affirmed, with costs.
"The manner in which a police officer operated his or her vehicle in responding to anemergency may form the basis of civil liability to an injured third party if the officer acted inreckless disregard for the safety of others" (Ferrara v Village of Chester, 57 AD3d 719, 720 [2008]; seeVehicle and Traffic Law § 1104 [e]; Criscione v City of New York, 97 NY2d152, 156 [2001]; Saarinen v Kerr, 84 NY2d 494, 501 [1994]; Daly v County of Westchester, 63AD3d 988, 989 [2009]). "The 'reckless disregard' standard requires proof that the officerintentionally committed an act of an unreasonable character in disregard of a known or obviousrisk that was so great as to make it highly probable that harm would follow" (Ferrara vVillage of Chester, 57 AD3d at 720; see Campbell v City of Elmira, 84 NY2d 505,510 [1994]; Saarinen v Kerr, 84 NY2d at 494; Daly v County of Westchester, 63AD3d at 989).
Here, the defendant County of Suffolk, in moving for summary judgment, failed to establish,prima facie, that its police officers did not act in reckless disregard for the safety of others incommencing, conducting, or failing to terminate a high-speed, night-time pursuit of a vehicledriven by an individual suspected of failing to signal before turning and unlawfully firing apaintball gun at persons or property, during which the subject accident occurred (see Ferrara vVillage of Chester, 57 AD3d at 720; Rockhead v Troche, 17 AD3d 118, 119 [2005]; cf. Saarinen vKerr, 84 NY2d at 497-503; Nurse vCity of New York, 56 AD3d 442, 443 [2008]). The County's submissions failed toeliminate triable issues of fact as to whether the pursuing officers properly informed thesupervising field officer that the suspect was speeding on a residential road with the vehicle'sexternal lamps turned off, and that he was continually disobeying traffic control devices. Had thesupervising officer been properly informed, he could have made an informed decision regardingwhether the pursuit should be discontinued. Moreover, there are triable issues of fact as towhether the pursuing [*2]officers should have terminated thepursuit in light of the facts that the pursuit was conducted at high speeds, up to 90 miles per hour,on residential and commercial streets with speed limits of 35 miles per hour or less, the suspectturned off the vehicle's external lamps during the pursuit, he disobeyed traffic control devices,and he was thought to have committed relatively minor offenses. Accordingly, the SupremeCourt properly denied the County's motion for summary judgment dismissing the complaintinsofar as asserted against it (see Campbell v City of Elmira, 84 NY2d at 510-511;Ferrara v Village of Chester, 57 AD3d at 720; Rockhead v Troche, 17 AD3d at119), regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851 [1985]). Skelos, J.P., Dickerson, Eng and Austin, JJ., concur.