                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 22, 2015                   518855
________________________________

LORETTA ROUSE-HARRIS et al.,
                    Appellants,
      v
                                            MEMORANDUM AND ORDER
CITY OF SCHENECTADY POLICE
   DEPARTMENT et al.,
                    Respondents.
________________________________


Calendar Date:   November 18, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Egan Jr. and Clark, JJ.

                             __________


      Grasso Rodriguez & Grasso, Schenectady (Christopher R.
Burke of counsel), for appellants.

      Burke, Scolamiero, Mortati & Hurd, LLP, Albany (Bryan D.
Richmond of counsel), for respondents.

                             __________


Clark, J.

      Appeal from an order of the Supreme Court (Kramer, J.),
entered July 3, 2013 in Schenectady County, which granted
defendants' motion for summary judgment dismissing the complaint.

      In March 2010, plaintiff Loretta Rouse-Harris (hereinafter
plaintiff) was injured when the car she was driving was struck by
a police cruiser. Plaintiff was driving on Lafayette Street in
the City of Schenectady, Schenectady County at the time of the
accident, which occurred at dusk. The headquarters for defendant
City of Schenectady Police Department is located at the corner of
Liberty and Lafayette Streets, and its driveway exits onto
Lafayette Street. Defendant Kevin Derkowski is an officer with
the Department who turned his police cruiser left onto Lafayette
                              -2-                  518855

Street and collided with plaintiff's automobile.

      Plaintiff and her husband, derivatively, then commenced
this negligence action against defendants. Following joinder of
issue, defendants moved for summary judgment dismissing the
complaint, asserting that Derkowski was entitled to qualified
immunity under Vehicle and Traffic Law § 1104 because he was in
pursuit of a suspect at the time of the accident and did not
behave recklessly. Supreme Court agreed and granted the motion,
prompting this appeal by plaintiffs.

      We affirm. "When an emergency vehicle, including a police
vehicle, is involved in an emergency operation — such as pursuing
an actual or suspected violator of the law — the driver of the
emergency vehicle is entitled to qualified immunity and is only
liable for damages when the driver's conduct is found to be
reckless" (Flack v State of New York, 57 AD3d 1199, 1199-1200
[2008] [citations omitted]; see Vehicle and Traffic Law § 1104
[a], [e]; Saarinen v Kerr, 84 NY2d 494, 497 [1994]; Muniz v City
of Schenectady, 38 AD3d 989, 990-991 [2007]). There is no
question that Derkowski was engaged in an emergency operation
while driving an emergency vehicle and, as such, the only
question presented is whether his conduct rose to the level of
recklessness. "In order to demonstrate reckless disregard for
the safety of others, a plaintiff must show that the defendant
has intentionally done an act of an unreasonable character in
disregard of a known or obvious risk that was so great as to make
it highly probable that harm would follow and has done so with
conscious indifference to the outcome" (Muniz v City of
Schenectady, 38 AD3d at 991 [internal quotation marks and
citations omitted]; see Frezzell v City of New York, 24 NY3d 213,
217 [2014]).

      The facts here are largely undisputed. Derkowski intended
to pursue a fleeing suspect in his patrol car, a pursuit that
gained additional urgency when he spotted the suspect driving
north on Lafayette Street (cf. Muniz v City of Schenectady, 38
AD3d at 991). Prior to turning onto the street in order to
follow the suspect, Derkowski looked in both directions to ensure
that no traffic was coming. His view of the southbound lane was
obscured, however, by several illegally parked vehicles.
                              -3-                  518855

Derkowski then turned left onto the street and collided with
plaintiff. Derkowski did not activate his emergency lights or
siren prior to turning, and plaintiff testified that it did not
appear that Derkowski had his headlights on. Inasmuch as the
pursuit had just commenced and Derkowski checked for oncoming
traffic before turning, his failure to have lights and sirens on
constituted nothing more than "a momentary lapse in judgment not
rising to the level of 'reckless disregard for the safety of
others'" (Green v State of New York, 71 AD3d 1310, 1312 [2010],
quoting Vehicle and Traffic Law § 1104 [e]; see Szcerbiak v
Pilat, 90 NY2d 553, 557 [1997]; Saarinen v Kerr, 84 NY2d at 502-
503; cf. Campbell v City of Elmira, 84 NY2d 505, 508-509, 511
[1994]). Thus, even when viewed in the light most favorable to
plaintiffs (see Hilton v Jones, 114 AD3d 1113, 1114 [2014]), the
evidence establishes defendants' entitlement to summary judgment
dismissing the complaint (see Frezzell v City of New York, 24
NY3d at 218-219; Szcerbiak v Pilat, 90 NY2d at 557; Saarinen v
Kerr, 84 NY2d at 502-503; Dodds v Town of Hamburg, 117 AD3d 1428,
1429 [2014]).

     Lahtinen, J.P., McCarthy, Rose and Egan Jr., JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
