        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

779
CA 13-01790
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


APRIL M. WILLIAMS,
PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CHARLES A. FASSINGER AND CITY OF SYRACUSE,
DEFENDANTS-APPELLANTS-RESPONDENTS.
(APPEAL NO. 1.)


MARY ANNE DOHERTY, CORPORATION COUNSEL, SYRACUSE (ANN M. ALEXANDER OF
COUNSEL), FOR DEFENDANTS-APPELLANTS-RESPONDENTS.

GREENE & REID, PLLC, SYRACUSE (EUGENE W. LANE OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Onondaga County (Hugh A. Gilbert, J.), entered May 3, 2013. The order
denied the motion of plaintiff and cross motion of defendants for
summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting defendants’ cross motion
and dismissing the complaint and as modified the order is affirmed
without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when her vehicle collided at an intersection
with a police vehicle owned by defendant City of Syracuse (City) and
operated by defendant Charles A. Fassinger, a police officer employed
by the City (hereafter, defendant officer). Plaintiff thereafter
moved for partial summary judgment on liability, i.e., negligence and
serious injury, and defendants cross-moved for summary judgment
dismissing the complaint on the ground that they are afforded
qualified immunity by Vehicle and Traffic Law § 1104 (e). By the
order in appeal No. 1, Supreme Court denied the motion and the cross
motion. Plaintiff moved, and the City cross-moved, for leave to
reargue. By the order in appeal No. 2, the court granted that part of
plaintiff’s motion seeking summary judgment on the issue of serious
injury, apparently on stipulation of the parties, but otherwise denied
the motion and further denied the City’s cross motion for leave to
reargue. We note at the outset that we dismiss the City’s appeal from
the order in appeal No. 2 inasmuch as the order denying the cross
motion for leave to reargue is not appealable (see Empire Ins. Co. v
Food City, 167 AD2d 983, 984).
                                 -2-                           779
                                                         CA 13-01790

     With respect to appeal No. 1, we agree with defendants that the
applicable standard of liability is reckless disregard for the safety
of others as set forth in Vehicle and Traffic Law § 1104 (e) (see
generally Criscione v City of New York, 97 NY2d 152, 157-158). At the
time of the collision, defendant officer was responding to a police
call and was therefore operating an authorized emergency vehicle while
involved in an emergency operation (see §§ 101, 114-b; Criscione, 97
NY2d at 157-158; Hughes v Chiera, 4 AD3d 872, 873). We further
conclude that, by failing to yield the right of way while attempting
to execute a left turn at a green light, defendant officer was
“engage[d] 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), i.e., he was “exercis[ing one of] the privileges set
forth in” the statute at the time of the accident (§ 1104 [a]; see
Kabir, 16 NY3d at 223; Dodds v Town of Hamburg, 117 AD3d 1428, ____).

     We further conclude that defendants established as a matter of
law that defendant officer’s conduct did not rise to the level of
reckless disregard for the safety of others (see Szczerbiak v Pilat,
90 NY2d 553, 556-557), and that plaintiff failed to raise a triable
issue of fact in opposition to the cross motion (see Herod v Mele, 62
AD3d 1269, 1270, lv denied 13 NY3d 717; Hughes, 4 AD3d at 873; see
generally Zuckerman v City of New York, 49 NY2d 557, 562). Defendant
officer testified that, as he was approaching the intersection in a
southbound direction, the only traffic he observed was a line of
northbound vehicles waiting to turn left. When he reached the
intersection, he stopped for a “few seconds” to ensure that the
intersection was clear. Defendant officer testified that he could see
a distance of approximately three car lengths in the right northbound
lane and that he did not see any traffic in that lane when he started
his turn. He then “cre[pt] into the intersection, making sure . . .
nobody was passing on the right of the vehicles stopped to make a
left.” Plaintiff similarly testified that there was a line of cars in
the northbound lane preparing to turn left, that she “veered to the
right” around the line of cars in order to proceed straight through
the intersection, and that the accident occurred in the intersection.
We thus conclude that, “[g]iven the evidence of precautions taken by
[defendant officer] before he attempted his [left] turn, . . . he did
not act with ‘conscious indifference’ to the consequences of his
actions” (Green v State of New York, 71 AD3d 1310, 1312, quoting
Saarinen v Kerr, 84 NY2d 494, 501; see Dodds, 117 AD3d at ____). We
therefore modify the order in appeal No. 1 by granting defendants’
cross motion for summary judgment dismissing the complaint.




Entered:   July 3, 2014                        Frances E. Cafarell
                                               Clerk of the Court
