Fong v Town of Montgomery

Fong v Town of Montgomery 2012 NY Slip Op 02838 Decided on April 17, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 17, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
DANIEL D. ANGIOLILLO
ARIEL E. BELEN
JEFFREY A. COHEN, JJ.
2011-04899
(Index No. 3623/10)

[*1]Alan Fong, et al., respondents,

v

Town of Montgomery, et al., appellants.




Drake, Loeb, Heller, Kennedy, Gogerty, Gaba & Rodd, PLLC
(Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis &
Fishlinger, Uniondale, N.Y. [Gregory A. Cascino], of counsel), for
appellants.
Oshman & Mirisola, LLP, New York, N.Y. (David L. Kremen
of counsel), for respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Orange County (Bartlett, J.), dated April 15, 2011, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint, as they failed to establish their prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557). The defendants failed to meet their prima facie burden of establishing the applicability of the so-called "rules of the road" exemption contained in Vehicle and Traffic Law § 1103(b) for emergency vehicles responding to a bona fide emergency and, therefore, were not entitled to the application of the "reckless disregard" standard of care (Vehicle and Traffic Law § 1103[b]; see Hofmann v Town of Ashford, 60 AD3d 1498; Davis v Incorporated Vil. of Babylon, N.Y., 13 AD3d 331; Marvin v Town of Middlesex, 2002 NY Slip Op 50006[U] [2002], affd 300 AD2d 1112; cf. Riley v County of Broome, 95 NY2d 455).
DILLON, J.P., ANGIOLILLO, BELEN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court