Quintero v City of New York

Quintero v City of New York 2014 NY Slip Op 00077 Decided on January 7, 2014 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 January 7, 2014
Sweeny, J.P., Acosta, Saxe, Moskowitz, Clark, JJ.
11441 115901/08

[*1]Janice Quintero, Plaintiff-Respondent, The

v

City of New York, et al., Defendants-Appellants, Samuel B. Borger, et al., Defendants.




Michael A. Cardozo, Corporation Counsel, New York (Janet L.
Zaleon of counsel), for appellants.
David P. Kownacki, P.C., New York (Andrew D. Leftt of
counsel), for respondent.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered August 20, 2012, which, to the extent appealed from as limited by the briefs, denied defendants-appellants' motion for summary judgment dismissing the General Municipal Law § 205-e claims predicated upon their alleged violation of the Vehicle and Traffic Law and the cross-claim alleging negligence, unanimously affirmed, without costs.

In this action brought by a police officer allegedly injured in a motor vehicle accident while she was a passenger in an unmarked police car, the municipal defendants failed to make a prima facie showing that the complaint's General Municipal Law
§ 205-e claims, predicated on violations of the Vehicle and Traffic Law, and co-defendants' cross-claim for negligence are barred by Vehicle and Traffic Law § 1104. Williams v City of New York (240 AD2d 734 [2d Dept 1997]), relied on by defendants, is distinguishable. In Williams, there was evidence that the police vehicle had used its portable light and siren to get a suspected stolen car to pull over (id. at 735-736). Here, however, plaintiff testified that defendant Rohe, the officer driving the vehicle, had double-parked the police vehicle in order to observe two suspects and that they were sitting at the accident location approximately 15 to 20 minutes before they were struck from behind by codefendants' minivan.

Further, Rohe testified that he had double-parked the police vehicle in order to investigate [*2]a suspect, which is not an "emergency operation" as defined by Vehicle and Traffic Law § 1104(a) (see Banks v City of New York, 92 AD3d 591, 591 [1st Dept 2012]; Rusho v State of New York, 76 AD3d 783, 784 [4th Dept 2010]).

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

ENTERED: JANUARY 7, 2014

CLERK