The defendant's motion for summary judgment, relying solely upon the reckless disregard standard set forth Vehicle and Traffic Law § 1104, is denied since the State driver had come to a full stop before entering the roadway and Vehicle and Traffic Law § 1104 did not apply.
|Claimant(s):||MICHAEL J. DAVIS|
|Claimant short name:||DAVIS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DEBRA A. MARTIN|
|Claimant's attorney:||SMALL LAW FIRM
BY: CRAIG Z. SMALL, ESQ.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: TAMARA B. CHRISTIE, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 7, 2021|
|See also (multicaptioned case)|
The following papers were read on defendant's motion for summary judgment:
1. Notice of Motion with Affirmation of Tamara B. Christie, AAG and attached exhibits, filed August 3, 2021;
2. Memorandum of Law, filed August 3, 2021;
3. Affirmation of Craig Z. Small, Esq. with attached exhibits, filed August 19, 2021;
4. Memorandum of Law, filed August 19, 2021;
5. Reply Affirmation of Tamara B. Christie, AAG, filed September 2, 2021;
6. Filed papers: claim, answer, amended answer.
Defendant moved for summary judgment seeking to dismiss this claim arising from a motor vehicle accident, relying solely upon the application of the reckless disregard standard set forth in Vehicle and Traffic Law § 1104. Claimant opposed the motion. For the reason set forth below, defendant's motion is denied.
The essential facts are not in dispute. On July 28, 2017 at approximately 9:20 a.m., State Trooper Thomas Anticola was driving an unmarked New York State Police vehicle south on Route 63 in the Town of Geneseo to attend a firearms training program. While in route, he received orders to respond to a call regarding an active methamphetamine lab in Cheektowaga. Trooper Anticola elected to turn around at the intersection of Route 63 and Route 20A, to head in the opposite direction. At his deposition, Trooper Anticola acknowledged that he stopped at the stop sign at the intersection for several seconds, looked both ways, and seeing no vehicles, turned onto Route 20A, striking the rear passenger side of claimant's vehicle.
Defendant's application for summary judgment must be denied because, as a matter of law, Vehicle and Traffic Law § 1104 does not apply to the undisputed facts. In Kabir v County of Monroe, the Court of Appeals limited the application of the reckless disregard standard set forth in Vehicle and Traffic Law § 1104 (e) to "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)" (16 NY3d 217, 220 ). The Fourth Department, citing Kabir in a matter identical to the one at hand, held that a policeman's conduct in stopping and looking both ways before proceeding into the intersection and striking the plaintiff's vehicle, was not conduct exempted from the rules of the road and that "his 'injury-causing conduct . . . is governed by the principles of ordinary negligence.' " (LoGrasso v City of Tonawanda, 87 AD3d 1390, 1390 [4th Dept 2011][internal citation omitted].)
In light of the above, defendant's motion for summary judgment (M-97054) is denied.
October 7, 2021
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims