Izquierdo v City of New York

Izquierdo v City of New York 2011 NY Slip Op 08655 Decided on November 29, 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 29, 2011
Saxe, J.P., Friedman, Renwick, DeGrasse, Freedman, JJ.
6187 18082/06

[*1]Porfirio Izquierdo, Plaintiff-Appellant,

v

The City of New York, Defendant-Respondent, Rafoul Maleh, et al., Defendants.




Raymond Schwartzberg & Associates, PLLC, New York
(Raymond B. Schwartzberg of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Fay Ng
of counsel), for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered July 29, 2010, which, in a personal injury action arising from a multi-vehicle accident, granted defendant City of New York's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The City established prima facie that the police officers did not operate the police vehicle in reckless disregard for the safety of others (see Vehicle and Traffic Law § 1104[b][2],[3]; [e]; Kabir v County of Monroe, 16 NY3d 217 [2011]; Saarinen v Kerr, 84 NY2d 494 [1994]). The police officers testified that they were responding to an emergency; that the traffic light was either green in their favor or turned green after they slowed down; and that they were slowly proceeding through the intersection when the co-defendants' van hit and pushed them into plaintiff's car. In addition, one of the officers testified that the turret light and siren were on as the police vehicle proceeded through the intersection.

Plaintiff's evidence failed to raise an issue of fact. Plaintiff testified at his 50-h hearing and deposition that, as he approached the intersection, the light was green in his favor and that he noticed the police vehicle heading northbound "slowly" and at an "average speed" with its turret light on. Although plaintiff's testimony that he did not hear a siren conflicts with one of the officer's testimony that the siren was on, this discrepancy is insufficient to raise an issue of fact. Indeed, pursuant to Vehicle and Traffic Law § 1104(c), police vehicles in emergency situations are not required to send emergency audible signals. This is "because they may need to approach suspected criminals without giving advance notice" (Kabir, 16 NY3d at 227 [internal quotation marks omitted]). Here, the officers testified that, at the time of the accident, they were nearing the location of a crime in progress, and plaintiff does not dispute that the officers were responding to an emergency.

In any event, even if the officers operated the vehicle recklessly, the City demonstrated prima facie that the officers' conduct did not proximately cause plaintiff's injury, and plaintiff [*2]failed to raise an issue of fact. Indeed, in addition to the foregoing testimony, plaintiff testified that the co-defendants' van approached the intersection at a "grand velocity" before hitting the police vehicle, causing the police vehicle to collide into his car (see Ventricelli v Kinney Sys. Rent A Car, 45 NY2d 950 [1978]; cf. White v Diaz, 49 AD3d 134 [2008]).

We have considered plaintiff's remaining contentions and find them unavailing.

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

ENTERED: NOVEMBER 29, 2011

CLERK