| Regdos v City of Buffalo |
| 2015 NY Slip Op 07358 [132 AD3d 1343] |
| October 9, 2015 |
| Appellate Division, Fourth Department |
[*1]
| Rachel Regdos, Respondent, v City of Buffalo et al.,Appellants. |
Timothy A. Ball, Corporation Counsel, Buffalo (David M. Lee of counsel), fordefendants-appellants.
Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Erie County (Frederick J. Marshall,J.), entered March 3, 2015 in a personal injury action. The interlocutory judgmentapportioned fault between plaintiff and defendant Police Officer Deanna Fera on theissue of liability.
It is hereby ordered that the judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries sheallegedly sustained when the vehicle she was driving was struck by a police vehicledriven by defendant Police Officer Deanna Fera (Officer Fera), who was employed bydefendant City of Buffalo Police Department. Following the liability phase of abifurcated trial, the jury rendered a verdict apportioning liability 45% to plaintiff and55% to Officer Fera, and defendants appeal from the interlocutory judgment enteredthereon.
We agree with plaintiff that Supreme Court properly denied that part of defendants'motion to set aside the verdict and for judgment notwithstanding the verdict (seeCPLR 4404 [a]). Inasmuch as it cannot be said that there is "no valid line of reasoningand permissible inferences which could possibly lead rational [persons] to the conclusionreached by the jury on the basis of the evidence presented at trial" (Cohen v HallmarkCards, 45 NY2d 493, 499 [1978]; see Pawlaczyk v Jones, 26 AD3d 822, 823 [2006], lvdenied 7 NY3d 701 [2006]), defendants are not "entitled to judgment as a matter oflaw" (CPLR 4404 [a]). Contrary to defendants' contention, we conclude that the jurycould have rationally determined that the combination of, inter alia, Officer Fera'sexcessive speed, her failure to activate the emergency lights and siren and slow down orbrake as she approached plaintiff's vehicle from behind, plaintiff's timely and appropriateengagement of her left turn signal, and Officer Fera's attempt to pass plaintiff's vehicleon the left on the wrong side of the street at a city intersection constituted "recklessdisregard for the safety of others" (Vehicle and Traffic Law § 1104 [e]; see Corallo v Martino, 58AD3d 792, 792-793 [2009]).
Defendants further contend that, because the jury assigned some fault to plaintiff, thejury necessarily concluded that Officer Fera had activated the emergency lights and sirenon her vehicle prior to the accident and that plaintiff was negligent because she failed tocomply with Vehicle and Traffic Law § 1144 (a) by yielding theright-of-way to Officer Fera's emergency police vehicle (see PJI 2:26). We rejectthat contention. In addition to charging the jury that the failure to comply with Vehicleand Traffic Law § 1144 (a) constitutes negligence, the court charged thejury concerning the general duty of drivers toward other motorists (see PJI 2:77,2:77.1). Thus, the jury was not limited to a violation of Vehicle and Traffic Law§ 1144 (a) as a basis for finding plaintiff negligent. The jury could haverationally concluded that, although Officer Fera had not activated her emergency lightsor siren, plaintiff nonetheless "did not [*2]observe thatwhich was there to be seen" and was "negligent in failing to look or in not lookingcarefully" (PJI 2:77.1). Present—Smith, J.P., Carni, Lindley, Valentino andDeJoseph, JJ.