| Ruiz v Cope |
| 2014 NY Slip Op 05061 [119 AD3d 1333] |
| July 3, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 Chalina Ruiz, Respondent, v Brendan L. Cope, et al.,Appellants. |
Robert P. Stamey, Corporation Counsel, Syracuse, D.J. & J.A. Cirando, Esqs.(John A. Cirando of counsel), for defendants-appellants.
Greene & Reid, PLLC, Syracuse (Eugene W. Lane of counsel), forplaintiff-respondent.
Appeal from an order and judgment (one paper) of the Supreme Court, OnondagaCounty (John C. Cherundolo, A.J.), entered November 29, 2012. The order andjudgment awarded plaintiff money damages upon a nonjury verdict.
It is hereby ordered that the order and judgment so appealed from is unanimouslyaffirmed without costs.
Memorandum: Defendants appeal from an order and judgment awarding plaintiffdamages following a nonjury trial. Plaintiff commenced this action seeking to recoverdamages for injuries she allegedly sustained when the vehicle she was driving collidedwith a Syracuse Police Department (SPD) vehicle being driven by Brendan L. Cope(defendant), a police officer who was in the process of "field training" under thesupervision of a sergeant. Shortly before the collision at a blind intersection, defendantreceived a "priority one," "shots-fired" radio call, and the sergeant activated the vehicle'ssiren and lights. As defendant's vehicle approached the intersection, his direction oftravel had a red light, and the cross street on which plaintiff was driving had a greenlight. Defendant failed to come to a complete stop prior to entering the intersection, inviolation of SPD rules and regulations. Witness testimony and the physical evidence,including a 45-foot skid mark, presented conflicting accounts whether defendant sloweddown or came to a near stop prior to entering the intersection and whether he failed tolook left, i.e., in plaintiff's direction.
Defendants contend, inter alia, that Supreme Court erred in denying that part of theirpretrial motion for summary judgment dismissing the complaint on the ground thatdefendant's actions do not rise to the level of recklessness required under Vehicle andTraffic Law § 1104. We reject that contention. Although defendants mettheir initial burden on the motion, we conclude that plaintiff raised a triable issue of factwhether defendant acted with "reckless disregard for the safety of others" in his operationof the police vehicle (§ 1104 [e]; see generally Saarinen v Kerr, 84NY2d 494, 501 [1994]). Specifically, plaintiff submitted evidence that defendant wastraveling at an excessive rate of speed; that defendant did not slow down or look left ashe approached the intersection; that defendant's direction of travel was controlled by ared light; that [*2]a building obstructed defendant's andplaintiff's views of each other; that there was other vehicular traffic in the vicinity; thatthe roads were wet; and that defendant had violated the rules and regulations of the SPD(see Ham v City ofSyracuse, 37 AD3d 1050, 1052 [2007], lv dismissed 8 NY3d 976[2007]; Allen v Town of Amherst, 294 AD2d 828, 829 [2002], lv denied3 NY3d 609 [2004]; seegenerally Elnakib v County of Suffolk, 90 AD3d 596, 597 [2011]).
Contrary to defendants' further contention, we conclude that the court's findingfollowing the trial that defendant had "intentionally done an act of an unreasonablecharacter in disregard of a known or obvious risk that was so great as to make it highlyprobable that harm would follow and ha[d] done so with conscious indifference to theoutcome" was based on a fair interpretation of the evidence (Ham, 37 AD3d at1052 [internal quotation marks omitted]; see Campbell v City of Elmira, 84NY2d 505, 508, 510-511 [1994]; see generally Matter of City of Syracuse Indus. Dev. Agency[Alterm, Inc.], 20 AD3d 168, 170 [2005]). Furthermore, the court'sapportionment of liability is amply supported by the record (cf. Don Vito v State ofNew York, 182 AD2d 1070, 1071 [1992]).
Likewise, we reject defendants' contention that the court's determination that plaintiffsustained a "serious injury" under the 90/180-day and significant limitation of usecategories of Insurance Law § 5102 (d) is not supported by objectivemedical evidence. Plaintiff provided objective evidence of her injuries in the form of herchiropractor's quantification of her loss of range of motion and observations of musclespasms, MRI reports, and an EMG study (see generally Limardi v McLeod, 100 AD3d 1375,1376-1377 [2012]; Frizzell vGiannetti, 34 AD3d 1202, 1203 [2006]).
Lastly, defendants failed to preserve for our review their contention that plaintiff'svicarious liability claim against defendant City of Syracuse (City) should have precludedher negligent training and supervision claim against the City (see Ciesinski v Town ofAurora, 202 AD2d 984, 985 [1994]). In any event, although we agree withdefendants that the undisputed fact that defendant was acting within the scope of hisemployment should have precluded plaintiff as a matter of law from bringing a claim thatthe City was liable for the negligent training and supervision of defendant (see Leftenant v City of NewYork, 70 AD3d 596, 597 [2010]; Matter of Trader v State of New York,277 AD2d 978, 978 [2000]), we conclude that the court's determination that the Citynegligently trained and supervised defendant is harmless (see CPLR 2002),inasmuch as the City is nonetheless vicariously liable under the doctrine of respondeatsuperior (see General Municipal Law § 50-c; see generallyPacelli v City of Syracuse, 305 AD2d 1062, 1063 [2003]). Present—Scudder,P.J., Fahey, Lindley, Valentino and Whalen, JJ.