Badalamenti v City of New York

[*1] Badalamenti v City of New York 2005 NY Slip Op 50121(U) Decided on January 24, 2005 Supreme Court, Richmond County Mega, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 24, 2005
Supreme Court, Richmond County

MARIE BADALAMENTI, Plaintiff,

against

THE CITY OF NEW YORK and THE NEW YORK CITY POLICE DEPARTMENT and BRIAN HUGHES, Defendant.



12648/01

Christopher J. Mega, J.

Upon the foregoing papers, defendants' motion for summary judgment dismissing the complaint is granted and the complaint is dismissed.

Plaintiff was injured on the night of September 22, 2000 when the vehicle which she was driving collided with a marked police vehicle being driven by the individual defendant, Lieutenant Brian Hughes of the New York City Police Department, at the intersection of Clawson Street and Bryant Avenue in Staten Island, New York. It is undisputed Lt. Hughes was responding to an emergency at the time of the occurrence.

According to the deposition testimony of Lt. Hughes, he was answering a radio call when he drove his police SUV (Sport Utility Vehicle) along Bryant Avenue with his turret lights on [*2]and sounding his siren intermittently. As he approached the stop sign at the intersection of Bryant and Clawson, Lt. Hughes admittedly did not come to a full stop, but rather reduced his speed before accelerating into the intersection. It is undisputed that plaintiff struck the Lieutenant broadside, just behind the driver's door, overturning his SUV as a result of the impact. The Lieutenant professed no estimate of plaintiff's speed, but testified that he was already in the intersection when he first observed plaintiff's vehicle, about 10 to 20 feet away. He estimated his own speed at the point of impact as between 10 and 20 miles per hour. The Lieutenant also testified that his vision of oncoming traffic along Clawson Street, which is one-way approaching Bryant, had been partially obscured by a parked vehicle.

In opposition, plaintiff has directed this Court to a portion of her testimony at the statutory hearing (General Municipal Law §50-h) in which she stated that Lt. Hughes' vehicle "just shot right in front" of her. Plaintiff saw no emergency lights and heard no siren. She estimated her own speed at the point of impact as 15 mph and stated that defendant's vehicle was traveling "faster". Plaintiff has also submitted the affidavit of a purported expert, a licensed private investigator and retired New York City Police Officer who had worked for 12 years on the department's "Accident Investigation Squad". Upon reviewing the accident report and the pertinent transcripts, this expert concluded that Lt. Hughes had "recklessly disregarded the applicable vehicle and traffic safety laws" by failing to stop at the stop sign while his view of traversing traffic was obscured by the parked vehicle, and that this omission was compounded by plaintiff's testimony regarding his alleged failure to use his turret lights and siren. The expert concluded, "based upon a reasonable degree of professional certainty, that Lieutenant Hughes's failure to stop at the stop sign, knowing that a parked truck obstructed his view of the traversing traffic which had the right of way, along with his failure to utilize his lights and siren, and his acceleration as he proceeded through the intersection despite his inability to see, rises to the level of reckless operation of a police emergency vehicle in that it clearly reflects a reckless disregard for the safety of others."

As previously indicated, the motion is granted.

Here, It is undisputed that Lt. Hughes was driving an emergency vehicle and responding to a police dispatch at the time of the accident. As such, it is well settled that the Lieutenant enjoyed a qualified privilege under section 1104 of the Vehicle and Traffic Law which permitted him to disregard the ordinary rules of prudent and responsible driving (see Vehicle and Traffic Law §§101, 114-b; Criscione v. City of New York, 97 NY2d 152; Hughes v. Chiera, 4 AD3d 872 [4th Dept 2004]). Under these circumstances, defendants may be required to respond in damages only if the lieutenant's conduct demonstrated a "reckless disregard" for the safety of others, which is defined as the conscious or intentional "do[ing] of an act of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow and done with conscious indifference to the outcome" (Salzano v Korba, 296 AD2d 393, 394[2d Dept 2002] quoting Saariven v Kerr, 84 NY2d 494, 501 [internal quotation marks omitted]). Pertinently, it has been held, inter alia, that a momentary lapse in judgment is insufficient to establish "the level of recklessness required to the driver of an emergency vehicle in order for liability to attach" (Szczerbiak v Pilat, 90 NY2d 553, 557; see Saarinen v Kerr, 84 NY2d at 502)

In this case, defendants have established as a matter of law that Lt. Hughes' conduct did [*3]not rise to the level of "reckless disregard". In opposition, plaintiff has failed to raise a triable issue of fact.

Contrary to plaintiff's or her expert's contention, Lt. Hughes' failure to come to a full stop prior to entering the intersection with his vision partially obscured does not, standing along, render his conduct reckless, even if (as plaintiff claims and the Lieutenant denies), his turret lights and siren were not in use (see Vehicle and Traffic Law §1104[c]; Salzano v Korba, 296 AD2d at 394-395 [in which the officer's use of his emergency lights and siren is not indicated]; see also Hughes v. Chiera, 4 AD3d at 873). Also contrary to plaintiff's contention, section 1104 of the Vehicle and Traffic Law contains no provision excepting supervisory personnel responding to an emegency dispatch (see Vehicle and Traffic Law §§101, 114-b). Finally, any alleged failure on the part of Lt. Hughes to follow the general standards of care articulated in the NYPD "Patrol Guide" would not furnish an independent basis for liability (see Turini v County of Suffolk, 8 AD3d 260 [2d Dept 2004], lv denied 3 NY3d 611).

Plaintiff's remaining contentions are without merit.

Accordingly it is

ORDERED that defendants' motion is granted and the complaint is dismissed; and it is further

ORDERED that the Clerk enter judgment accordingly.

E N T E R ,

s/ Christopher J. Mega J.S.C.



Dated: January 24, 2005.