Lewis v City of New York

Lewis v City of New York 2017 NY Slip Op 07785 Decided on November 9, 2017 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 9, 2017
Manzanet-Daniels, J.P., Andrias, Gische, Kern, Singh, JJ.
4909 305072/12

[*1]Daphne O.B. Lewis, Plaintiff-Appellant,

v

The City of New York, et al., Defendants-Respondents.

Michael B. Palillo, P.C., New York (Ryan Amato of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Daniela Jampel of counsel), for respondents.

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered May 19, 2016, which, in an action for personal injuries sustained in a motor vehicle accident, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants' motion for summary judgment was properly granted since the record shows that defendant Kohler, a police officer, was operating a police vehicle while performing an emergency operation and did not recklessly disregard the safety of others before the accident happened (see Daniels v City of New York, 28 AD3d 415 [2d Dept 2006], lv dismissed in part denied in part 7 NY3d 825 [2006]). The fact that Koehler was mistaken in believing that plaintiff was stopping her vehicle when he proceeded to pass through the red light did not render his conduct reckless. Koehler testified that as he approached the intersection, he reduced his speed and looked left and right. He was traveling approximately 10 miles above the speed limit when the accident occurred. Koehler attempted to avoid colliding with plaintiff by braking hard and turning the steering wheel to the right upon realizing that plaintiff's vehicle had entered the intersection (see Frezzell v City of New York, 105 AD3d 620 [1st Dept 2013], affd 24 NY3d 213 [2014]; Quock v City of New York, 110 AD3d 488 [1st Dept 2013]). The fact that there is a question as to whether the police vehicle's lights and siren were activated is not material because Koehler was not required to activate either of these devices in order to be entitled to the statutory privilege of passing through a red light (see Flynn v Sambuca Taxi, LLC, 123 AD3d 501, 502 [1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 9, 2017

CLERK