Khalique v City of New York

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Khalique v City of New York 2019 NY Slip Op 33874(U) December 18, 2019 Supreme Court, Queens County Docket Number: 709807/16 Judge: Kevin J. Kerrigan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] QUEENS COUNTY CLERK 12/31/2019 11:07 AM NYSCEF DOC. NO. 27 INDEX NO. 709807/2016 RECEIVED NYSCEF: 12/31/2019 Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present : HONORABLE KEVIN J . KERRIGAN Justice Part _!Q_ ---------- --- - -------------------- ----- -x Darius Kha l i qu e - Jame s;_JLd,.;'ml;l~~=.r.....------., Index Number : 709807/16 FILED Plai ntiff , - against DEC 31 Z019 otion COUNTY CLERK ate : 12/2/19 QUt:eNS COUNTY The City of New York , New York City Police Department and Frank Italiano , Motion Seq . No . 1 Defendants . --- --- - ----- ---------- -------- ----------x The following papers numbered 1 to 9 read on this motion by defendants for summary judgment . Papers Numbered Notice of Motion - Affirmation - Exhibits .. . ....... . . . .. .. 1-4 Affirmation in Opposition - Exhibit .... . . .. . . . . . . . . . .... 5 - 7 Reply .. .. . . . . . . . . . . . .. ... . . ..... . . . . ...... .... . . . ..... 8 - 9 Upon the foregoing papers it is ordered that the motion is decided as follows : Motion by defendants compl aint is granted . for summary judgment dismissing the Plaintiff allegedly sustained injuries in a motor vehicle accident o n October 5 , 2015 at the intersection of J amaica Avenue and 168 .. Street in Queens County when the vehicle he was operating collided with an NYPD vehicle operated by defendant police officer Italiano . Plaintiff testified in his deposition that he was on Jamaica Avenue , which is a two-way roadway , at the intersect ion of 168' t. Street stopped at a red light , and that when the l ight tu rned green and he proceeded , he intended to drive straight th rough the intersection and continue o n Jamaica Avenue , but there was a bus blocking the intersection , and so proceeded to drive around the ba c k of the bus notwithstanding that he could not see the opposing traffic on Jamaica Avenue . As he did so , he saw the police vehicle approaching in the opposing lane for the first time a fraction o f a second before impact when the police vehicle was approximately one foot away from plaintiff that had turned onto 168. Street . When asked if he saw any lights or hea rd any siren , he answered in the 1 of 4 [*FILED: 2] QUEENS COUNTY CLERK 12/31/2019 11:07 AM NYSCEF DOC. NO. 27 INDEX NO. 709807/2016 RECEIVED NYSCEF: 12/31/2019 negative . Italiano testified in his deposition that at the time of the accident he was responding to a radio call of an assault with a firearm in progress at 109n Street and Merrick Boulevard . He testified that he had his lights and siren activated and was driving west on Jamaica Avenue toward 168 ·r Street , intending to turn left ont o 168"' Street . There was a bus at the intersection facing east attempting to turn left onto 168. h Street northbound , but it stopped in response to his lights and siren . The bus blocked Italiano ' s vi e w o f traffic traveling eastbound on Jamaica Avenue . He testified that he stopped and waited for pedestrians crossing in the crosswalk before proceeding to make the turn onto 168 ' 1 Street . He related that as he inched forward by easing his foot off the brake , he saw plaintiff enter the intersection at which time the impact occurred . Pursuant t o Vehicle and Traffic Law§ 1104(b) and (c) and as defined in Vehicle and Traffic Law §§ 101 and 114 - b , an authorized emergency vehicle invo l ved in an emergency operation may disregard certain traffic laws if safety precautions are taken (See , Cr iscione v Cit y of New York , 97 NY2d 152 (2001] ; Baines v Cit y of New York , 269 AD2d 309 (2000]) . A driver of an a u thorized emergency vehicle is not relieved of the obligation to drive with " due r ega rd for the safety of all persons " nor does the statute protect reckless conduct (Vehicle and Traffic Law § 1104 [ e ] ) . Thu s , a police o ff icer will be provided with a qualified exemption from civil liability for injuries to a third party "un less the officer acted in reckless disregard for the safety of others " (Mouzakes v Count y of Suffolk , 94 AD 3d 829 [2 n~ Dept 2012] ; Saarinen v Kerr , 85 NY2d 494 , 501 (1994]) . A finding of reckless disregard requires proof that the officer has intentionally committed " an act of an unreas o nable c hara c ter in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow " (Saarinen v Kerr , at 501 ; Puntarich v Count y of Suffolk , 47 AD3d 7 85 ( 20 08] ) . A momentary lapse of judgment is insufficient to attach liability to the driver of the emergency vehicle (Szczerbiak v Pilat , 90 NY2d 553 (1994] ) . In the instant case , it clear and undisputed that Italiano was involved in an emergency operation when he was responding to a call of an a s sault in progress involving a gun (Vehicle and Traffic Law§ 114-b ; see , Criscione , 97 NY2d at 157) . The issue , therefore , is whether his conduct in turning onto 168 'r• Street constituted reckl e ss co ndu c t . Plaintiffs ' counsel argues in opposition that VTL 1104 is inapplicable to shield Italiano from liability because his turning left and failing to yield the right of way to plaintiff in the intersection was a violation of the VTL and presents a case of -2- 2 of 4 [*FILED: 3] QUEENS COUNTY CLERK 12/31/2019 11:07 AM NYSCEF DOC. NO. 27 INDEX NO. 709807/2016 RECEIVED NYSCEF: 12/31/2019 liability under ordinary principles of neg ligence . Counsel ' s argument is without merit . VTL 1104(b) (4) allows the driver of an emergency vehicl e involved in an emergency operation to disregard the VTL regarding the making of turns , in cl uding left turns such as in the present case (see also Jimenez - Cruz v Cit y of New York , 170 AD 3d 975 [2 °.J Dept 2019)) . Counsel also argues that even if this case were to be analyzed under the recklessness standard of VTL 1104 , there is an issue of fact as to whether Italiano acted re cklessl y by making a left turn blindly without activating his emergency lights and siren and , consequently , defendants failed to establis h that their responsibility is governed by the recklessness standard as opposed to the ordinary negligence standard . Counsel ' s argument is again with out merit . There is no requirement unde r VTL 1104 that a police veh icle engaged in an emergency operation have its lights and siren activated in order to be e x empt from liability . VTL 11 04(c) does provide that the exempti ons apply " only when audible signals are sounded u, " [E]xcept for an autho rized emerg enc y vehic l e o p erated as a p olice vehicle " (emphasis added) . Thus , although activation of lights and sirens by emergency vehicles are ordinari ly key elements in meeting the recklessness standard (se e Saa rin en v Kerr (supra) ; see also Krulik v Count y of Suffo lk , 62 AD 3d 669 [ 2 '• ) Dept 2009]) , such are not key eleme nt s when the vehi cle is not a police vehicle . Police vehicles engaged in an emergency ope rati on , may , under the proper ci rcumstan ces , be afforded the privileges under th e statute even if audible signals , and even if lights , are not in use (Vehicle and Traffic Law § 1104 [c] ) . The relevant inquiry is wheth er the police of ficer took sufficient pre ca utionary measures under the circumstances presented to avoid injury to the public (see Frezzell v Cit y of Ne w York , 24 NY 3d 213 [2014]) . The undisputed testimony of Italiano that he stopped at the inters ection so as to allow pedestrians to clear the intersection , bef ore inching his way forward around the bus did no t rise to the level of recklessness . Moreov e r , his testimony that his emergency lights were activated is not disputed . Plai ntiff test ified that he did not see any lights . He did not testify that the police vehicle did not have its lights activated . This observation is not merely a semantical argument . Plaintiff testified that the bus blocked his view and he cou ld not see a ny traffic around it , and did not see the police vehicle until a millisecond before impact . The evidence present ed on t his record does not raise any issue of fact as to wh ether italiano operated his vehicle with reckl ess disregard . On the co ntrary , it establishes that the conduct of Italiano in the operation of his police vehicle did not rise to the level of recklessness and , therefore , he and the City are entitled to the exemption from liability afforded by VTL 1104 . Fina l ly , inasmuch as the New York City Police department is not a dist inct entit y , it is n ot a cognizable party and , therefore , -3- 3 of 4 [*FILED: 4] QUEENS COUNTY CLERK 12/31/2019 11:07 AM NYSCEF DOC. NO. 27 INDEX NO. 709807/2016 RECEIVED NYSCEF: 12/31/2019 the action must be dismissed against it as a matter of law for this reason alone . Accordingly , the action is dismissed . Dated : December 18 , 20 1 9 FILED DEC 31 2019 CQUl'lt'I' C:l.eRK Q U~fNS COUNTY -4- 4 of 4

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