Spencer v Astralease Associated, Inc.

Spencer v Astralease Associated, Inc. 2011 NY Slip Op 08199 Decided on November 15, 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 November 15, 2011
Mazzarrelli, J.P., Catterson, Moskowitz, Renwick, Abdus-Salaam, JJ.
6010 350628/07

[*1]McKayla Spencer, an infant by her Guardian ad Litem, Desmond Gordon, et al., Plaintiffs-Respondents,

v

Astralease Associated, Inc., Defendant, Lifeline Ambulance Services Inc., et al., Defendants-Appellants, Perisis Y. Miller, et al., Defendants-Respondents.




Galvano & Xanthakis, P.C., New York (Steven F. Granville of
counsel), for appellants.
Scott Baron & Associates, P.C., Howard Beach (Edward C.
Lehman of counsel), for McKayla Spencer and Desmond
Gordon, respondents.
Picciano & Scahill, P.C., Westbury (Andrea E. Ferrucci of
counsel), for Perisis Y. Miller and Alethia Gordon, respondents.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered October 25, 2010, which, insofar as appealed from, in this action for personal injuries allegedly sustained by infant plaintiff in a motor vehicle accident, denied the motion of defendants Lifeline Ambulance Services Inc. and Gilberto Ward for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of Lifeline Ambulance Services, Inc. and Gilberto Ward dismissing the complaint as against them.

Infant plaintiff was a rear-seat passenger in a vehicle owned by defendant Miller and operated by defendant Gordon (infant plaintiff's mother). As the vehicle driven by Gordon proceeded through an intersection with a green light in her favor, it was struck by an ambulance leased by Lifeline and operated by Ward, who was responding to an emergency situation. The impact caused both vehicles to strike a third vehicle owned by a nonparty.

The record demonstrates that Lifeline and Ward were entitled to summary judgment. The evidence established that Ward activated his siren and emergency lights prior to the accident and hit the ambulance's air horn several times and slowed his rate of speed as he approached the intersection. Thus, he had a qualified privilege to proceed through the red light (see Vehicle and Traffic Law § 1104[b]; Kabir v County of Monroe, 16 NY3d 217 [2011]; Turini v County of Suffolk, 8 AD3d 260 [2008], lv denied 3 NY3d 611 [2004]). There was no evidence that Ward [*2]acted with reckless disregard for the safety of others during the emergency
operation of the ambulance (see Vehicle and Traffic Law
§ 1104[e]; Saarinen v Kerr, 84 NY2d 494 [1994]; Gervasi v Peay, 254 AD2d 172 [1998]).

Plaintiffs failed to raise a triable issue of fact in opposition to the prima facie showing. In her EBT, Gordon testified that she did not see the ambulance prior to the accident. Her testimony concerning the lights and sirens was based on observations made after the accident. Thus, Gordon's statements that the ambulance's lights and siren were not activated prior to the accident were insufficient to defeat the motion of Lifeline and Ward (see e.g. Phillips v Bronx Lebanon Hosp., 268 AD2D 318, 320 [2000]).

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

ENTERED: NOVEMBER 15, 2011

CLERK