| Starkman v City of Long Beach |
| 2013 NY Slip Op 03829 [106 AD3d 1076] |
| May 29, 2013 |
| Appellate Division, Second Department |
| Marshall Starkman, Appellant, v City of LongBeach et al., Respondents. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Glenn A. Kaminska and NicholasM. Cardascia of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Bruno, J.), entered November 15, 2012,which denied his motion for summary judgment on the issue of liability and dismissingthe defendants' first, second, fourth, fifth, and sixth affirmative defenses.
Ordered that the order is reversed, on the law, with costs, the plaintiff's motion isgranted, and the defendants' first, second, fourth, fifth, and sixth affirmative defenses aredismissed.
At around noon on May 26, 2010, the defendant Police Officer Paul DeMarco waspatrolling the beach in his patrol car when his vehicle struck the plaintiff, who was lyingon the beach in a beach chair. The plaintiff commenced the instant action to recoverdamages for personal injuries. In their answer, the defendants asserted six affirmativedefenses, including an affirmative defense based upon a qualified immunity pursuant toVehicle and Traffic Law § 1104, and an affirmative defense based upon thecommon-law emergency doctrine, asserting that Officer DeMarco acted reasonably whenconfronted with an emergency not of his own making (see Lifson v City of Syracuse,17 NY3d 492, 497 [2011]).
At his deposition, Officer DeMarco testified that, on the day of the accident, he notedthat the beach was crowded. He saw people gathering on the boardwalk, pointing to thewater and shouting. He drove toward them, and then toward the water to see "what washappening, if there was an emergency," at a speed of between five and seven miles perhour, and struck the plaintiff. He acknowledged that when he struck the plaintiff he was"not aware of any emergency situation that needed to be addressed." When he struck theplaintiff, he felt the vehicle "go over what appeared to be a bump," and saw the plaintifffor the first time when he looked in his rear view mirror.
The plaintiff moved for summary judgment on the issue of liability and dismissingthe first, second, fourth, fifth, and sixth affirmative defenses, based upon the depositiontestimony elicited during discovery. The defendant opposed those branches of the motionwhich sought [*2]summary judgment on the issue ofliability, and opposed dismissal of the fifth and sixth affirmative defenses based uponVehicle and Traffic Law § 1104 and the common-law emergency doctrine.
In the order appealed from, the Supreme Court denied the motion in its entirety,citing Vehicle and Traffic Law § 1104, on the ground that "there are clearquestions of fact as to whether an emergency existed at the time Plaintiff was run overand whether Defendant DeMarco acted in reckless disregard of the safety of Plaintiff."
Vehicle and Traffic Law § 1104 (a) states that the driver of an authorizedemergency vehicle, when involved in an emergency operation, may disregard certaintraffic regulations. However, pursuant to Vehicle and Traffic Law § 1104 (e),"[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 thesafety of others." This is commonly referred to as the "reckless disregard standard ofcare," which requires the plaintiff to establish that the police officer acted in recklessdisregard for the safety of others in order to impose civil liability (see Saarinen vKerr, 84 NY2d 494, 502 [1994]). The reckless disregard standard of care isapplicable only "when a driver of an authorized emergency vehicle involved in anemergency operation engages in the specific conduct exempted from the rules of the roadby Vehicle and Traffic Law § 1104 (b)" (Kabir v County of Monroe, 16 NY3d 217, 220 [2011]).Vehicle and Traffic Law § 1104 does not apply to other conduct, such as where anaccident occurs because the police officer did not see that which through the proper useof his or her senses he or she should have seen (see Katanov v County of Nassau, 91 AD3d 723, 725[2012]).
In the instant case, Officer DeMarco acknowledged that he did not see the plaintiffuntil after he struck him with his car. His conduct—the failure to see that whichwas there to be seen—was not conduct specified in Vehicle and Traffic Law§ 1104 (b) as exempt from the rules of the road (see Katanov v County ofNassau, 91 AD3d at 725). Accordingly, his conduct was governed by the principlesof ordinary negligence (seeChessey v City of New York, 88 AD3d 625 [2011]). In any event, since OfficerDeMarco acknowledged at his deposition that, at the time he struck the plaintiff, he was"not aware of any emergency situation that needed to be addressed," the common-lawemergency doctrine is not applicable to this case. Accordingly, the fifth affirmativedefense, which is based upon Vehicle and Traffic Law § 1104, and the sixthaffirmative defense, which is based upon the common-law emergency doctrine, must bedismissed.
Under the principles of ordinary negligence, Officer DeMarco's failure to see whatwas there to be seen established the plaintiff's entitlement to judgment as a matter of lawon the issue of liability (seeMohammad v Ning, 72 AD3d 913 [2010]). In opposition, the defendants failedto raise a triable issue of fact (see Batal v Associated Univs., 293 AD2d 558[2002]). Further, the first, second, and fourth affirmative defenses must be dismissed onthe ground that the defendants did not oppose the dismissal of those affirmative defenses.In any event, those affirmative defenses were either waived (see CPLR 3211 [e])or are without merit.
In view of the foregoing, we reverse the order appealed from and grant the plaintiff'smotion in its entirety. Dillon, J.P., Lott, Austin and Hinds-Radix, JJ., concur.