Tatishev v City of New York

Tatishev v City of New York 2011 NY Slip Op 04383 Decided on May 26, 2011 Appellate Division, First 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 May 26, 2011
Tom, J.P., Friedman, Catterson, Renwick, Abdus-Salaam, JJ.
3943 111377/06

[*1]Sergey Tatishev, et al., Plaintiffs-Respondents,

v

The City of New York, Defendant-Appellant, Police Officer Simon Urena, Defendant.



 
Michael A. Cardozo, Corporation Counsel, New York (Fay Ng
of counsel), for appellant.
Sullivan Papain Block McGrath & Cannavo P.C., New York
(Stephen C. Glasser of counsel), for respondents.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered August 28, 2009, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

After this appeal was argued, the Court of Appeals clarified that "the reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b)" (Kabir v County of Monroe, 16 NY3d 217, 220 [2011]). "Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence" (id.). Here, the injury-causing conduct of the police driver —- making a left turn at a green light, within the speed limit, and not contrary to any restriction on movement or turning —- does not fall within any of the categories of privileged conduct set forth in Vehicle and Traffic Law § 1104(b). Accordingly, plaintiffs' claim is governed by principles of ordinary negligence, whether or not the police driver was responding to an emergency. Because the record presents a triable issue as to whether the police driver was negligent when his vehicle struck the pedestrian plaintiff in the crosswalk, we affirm the denial of defendants' motion for summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 26, 2011 [*2]

CLERK