Taveras v Almodovar

Taveras v Almodovar 2022 NY Slip Op 05385 Decided on September 29, 2022 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 and Entered: September 29, 2022
Before: Acosta, P.J., Mazzarelli, Gesmer, González, Pitt, JJ.
Index No. 31294/19E Appeal No. 16303 Case No. 2021-02967

[*1]Leidy Taveras, Plaintiff-Appellant,

v

Emmanuel Almodovar et al., Defendants-Respondents.

Melucci Firm, P.C., Garden City (Daniel Melucci of counsel), for appellant.

Morris, Duffy, Alonso, Faley & Pitcoff, New York (Robert S. Whitbeck and Kevin Faley of counsel), for respondents.

Order, Supreme Court, Bronx County (Veronica G. Hummel, J.), entered August 3, 2021, which granted defendants Emmanuel Almodovar and Citywide Mobile Response Corp.'s motion for summary judgment dismissing the complaint and denied plaintiff's motion for summary judgment on liability, unanimously modified, on the law, to deny defendants' motion and reinstate the complaint, and otherwise affirmed, without costs.

"[T]he 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, although defendants established that they engaged in conduct covered by Vehicle and Traffic Law § 1104(b)(1) by parking in a "No Standing" area, there were, at a minimum, questions of fact whether the ambulance had its emergency lights and sirens activated as required by Vehicle and Traffic Law § 1104(c).

Because the record presents triable issues whether the reckless disregard standard of care applies, plaintiff's motion for summary judgment on the issue of liability under the ordinary negligence standard of care is premature and was properly denied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: September 29, 2022