=================================================================
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 188
Kent Frezzell,
            Appellant,
        v.
City of New York, et al.,
            Respondents.




          Jay L. T. Breakstone, for appellant.
          Victoria Scalzo, for respondents.




GRAFFEO, J.:
          On this appeal, we are asked if defendants were
entitled to summary judgment on the issue of whether the police
officer's operation of his patrol vehicle rose to the level of
'reckless disregard' necessary for liability under Vehicle and
Traffic Law § 1104.   We conclude that defendants met their burden

                               - 1 -
                                 - 2 -                         No. 188

and plaintiff failed to raise a triable issue of fact.    We
therefore affirm the Appellate Division order.
             On September 20, 2006, around 10:00 p.m., New York City
police officer Steve Tompos and his partner Richard Brunjes were
patrolling in Central Park when they received an urgent radio
call from a fellow officer indicating that he was engaged in a
foot pursuit of a man with a gun near a public housing
development a few blocks away and needed assistance.    According
to Tompos, within seconds of the radio transmission, Brunjes
"threw the master switch" to activate the vehicle's lights and
turned on the siren.    Tompos drove the patrol car from the park
to Columbus Avenue and continued north against the legal flow of
traffic.   At the first intersection, Tompos turned left onto West
104th Street, heading eastbound on the westbound one-way street.
             Plaintiff Kent Frezzell and his partner, both on-duty
police officers, responded to the same radio call.    Frezzell was
driving his patrol vehicle westbound on West 104th Street when
the vehicle operated by Tompos headed down the same street in the
opposite direction.    Frezzell and Tompos saw each other's
vehicles just seconds before impact and both attempted evasive
maneuvers.    The resulting collision caused injuries to the
occupants of both cars.
             Frezzell subsequently commenced this action against
Tompos and the City of New York, asserting a General Municipal
Law § 205-e claim predicated upon violations of Vehicle and


                                 - 2 -
                                - 3 -                        No. 188

Traffic Law § 1104.1   Following discovery, Tompos and the City
moved for summary judgment, requesting dismissal of the cause of
action under the 'reckless disregard' standard of Vehicle and
Traffic Law § 1104 that applied to the evaluation of Frezzell's
claim.   Tompos and the City supported their motion with accident
reports, witness statements, the transcript of Frezzell's General
Municipal Law § 50-h hearing testimony, and the deposition
transcripts of the parties and vehicle occupants.   In opposition,
Frezzell proffered an affidavit explaining how the accident
occurred and submitted one accident report.
            Supreme Court granted Tompos's and the City's motion,
emphasizing that Tompos's vehicle was traveling at only 15 to 20
miles per hour at the time of the accident and that Tompos had
attempted to avoid colliding with the vehicle operated by
Frezzell.   The court concluded that "[a]t best, . . . [Frezzell]
has alleged mere negligence, which under . . . Vehicle and
Traffic Law [§ 1104 (e)] is not sufficient."
            The Appellate Division affirmed, with two Justices
dissenting (105 AD3d 620 [1st Dept 2013]).    The majority
determined that "Tompos . . . did not act in 'reckless disregard
for the safety of others' while operating his vehicle" and
highlighted testimony supporting the assertion that the emergency
lights and siren had been activated in the patrol car, Tompos had

     1
        Frezzell asserted other causes of action in his complaint
that have been disposed of on other grounds and which are not at
issue on this appeal.

                                - 3 -
                               - 4 -                         No. 188

reduced his speed while turning onto West 104th Street, and he
veered away from Frezzell's vehicle in an attempt to prevent the
accident (id. at 620).   Holding that Frezzell did not raise any
triable issues of fact in the absence of non-speculative evidence
that Tompos's view was obstructed or that he was speeding, the
majority held that Tompos and the City were entitled to summary
judgment dismissing the complaint (see id. at 621-622).
          The dissenters would have denied dismissal of the
complaint on the basis of issues of fact, surmising that a
reasonable jury could have found that the circumstances
surrounding Tompos's entry onto West 104th Street evinced a
reckless disregard for the safety of others (see id. at 623
[Manzanet-Daniels, J., dissenting]).   More particularly, the
dissent identified questions concerning whether an emergency
services unit (ESU) vehicle obstructed Tompos's view of the
intersection and whether Tompos or his partner had turned on the
emergency lights and siren (see id. at 622).
          Plaintiff now appeals to this Court as a matter of
right, pursuant to CPLR 5601 (a).
          Vehicle and Traffic Law § 1104 grants the driver of an
authorized emergency vehicle special driving privileges when
involved in an emergency operation.    Those privileges include
passing through red lights and stop signs, exceeding the speed
limit and disregarding regulations governing the direction of
movement or turning in specified directions (see Vehicle and


                               - 4 -
                                - 5 -                        No. 188

Traffic Law § 1104 [a], [b]).   But drivers of emergency vehicles
are not relieved of their duty to drive "with due regard for the
safety of all persons" and section 1104 does not "protect the
driver from the consequences of his reckless disregard for the
safety of others" (Vehicle and Traffic Law § 1104 [e]).
          This "reckless disregard" standard demands "more than a
showing of a lack of 'due care under the circumstances'--the
showing typically associated with ordinary negligence claims"
(Saarinen v Kerr, 84 NY2d 494, 501 [1994]).   Rather, for
liability to be predicated upon a violation of Vehicle and
Traffic Law § 1104, there must be evidence that "'the actor 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" (id., quoting Prosser and
Keeton, Torts § 34, at 213 [5th ed]).   This heightened standard
is grounded in the Legislature's recognition that, although the
exercise of the privileges granted in section 1104 may increase
the risks to pedestrians and other drivers, emergency personnel
"should be afforded a qualified privilege to disregard [certain
traffic] laws where necessary to carry out their important
responsibilities" (Saarinen, 84 NY2d at 502).   This approach
avoids "judicial 'second-guessing' of the many split-second
decisions that are made in the field under highly pressured
conditions" and mitigates the risk that possible liability could


                                - 5 -
                               - 6 -                        No. 188

"deter emergency personnel from acting decisively and taking
calculated risks in order to save life or property or to
apprehend miscreants" (id.).
          It is undisputed that Tompos's act of driving against
the flow of traffic on West 104th Street is privileged and must
be reviewed under the heightened 'reckless disregard' standard of
Vehicle and Traffic Law § 1104 (e).    Whether the standard was met
here is a fact-specific inquiry and our analysis is focused on
the precautionary measures taken by Tompos to avoid causing harm
to the general public weighed against his duty to respond to an
urgent emergency situation (see Szczerbiak v Pilat, 90 NY2d 553,
557 [1997]; Campbell v City of Elmira, 84 NY2d 505, 512 [1994];
Saarinen, 84 NY2d at 503).
          On this record, we conclude that Tompos and the City
met their burden of establishing that the officer's conduct did
not amount to reckless disregard of a highly probable risk of
harm "with conscious indifference to the outcome" (Saarinen, 84
NY2d at 501).   The evidence revealed that Tompos slowed down as
he turned on West 104th Street and was driving below the speed
limit on a clear and dry evening when the accident occurred.
Furthermore, the testimony of Tompos and Brunjes established that
their vehicle was moving at a speed between 10 and 25 miles per
hour in a 30-mile-per-hour zone.   Frezzell's allegation that
Tompos was traveling at a "high rate of speed" is insufficient to
create a material question of fact in light of his admission that
he could not estimate Tompos's speed or "what [Tompos's vehicle]

                               - 6 -
                                 - 7 -                       No. 188

was doing."    In addition, both Tompos and Brunjes testified as to
the preventative measures Tompos took to avoid the collision,
namely braking hard and veering to the side of the street.
Frezzell introduced no proof contradicting these assertions.
             Furthermore, the record in this case does not support
Frezzell's contention that there are triable issues of fact
regarding whether Tompos's vehicle was using its emergency lights
and siren at the time of the accident.    Although Brunjes did not
specifically recall having turned on the lights and siren when
they responded to the call, Tompos unequivocally stated several
times that Brunjes had done so and that these signals remained in
operation.    Nor did Frezzell contradict this testimony since he
could not state whether he observed the lights and siren on
Tompos's vehicle.    Despite evidence that an accident report did
not indicate that the patrol car's siren was set to "constant" --
as opposed to intermittent -- use, this alone does not rise to
the level of recklessness, particularly in light of the testimony
that sirens were heard from "[e]very different direction" prior
to the collision.    Moreover, section 1104 statutorily exempts
police vehicles from the requirement that audible signals be
emitted while an emergency vehicle is in motion (see Vehicle and
Traffic Law § 1104 [c]).
             Frezzell relies heavily on a report indicating that
Tompos may have had to negotiate around a parked ESU vehicle on
West 104th Street and contends that this obstacle obstructed


                                 - 7 -
                               - 8 -                         No. 188

Tompos's view when he turned onto the road.   Yet, Frezzell saw
Tompos's vehicle drive down Columbus Avenue and turn onto West
104th Street, indicating that the line of vision was not
completely obstructed.   In any event, Frezzell and Tompos both
claimed that the accident occurred "three or four car-lengths" or
"several" car-lengths down the street -- not at the corner of the
intersection.   If Tompos had to maneuver around a parked ESU
truck further down the street, this amounted, at most, to
negligence, not reckless disregard for the safety of others,
particularly when viewed in light of the seriousness and
immediacy of the situation to which Tompos was responding (see
Szczerbiak, 90 NY2d at 557; Saarinen, 84 NY2d at 502-503).
           Nor may liability in this case be predicated upon the
decision by Tompos and Brunjes to respond to their fellow
officer's call for help in apprehending an armed and fleeing
suspect.   Plaintiff argues that Tompos and Brunjes were reckless
in joining the pursuit because it originated outside of their
assigned patrol area and they allegedly failed to alert other
officers in the vicinity to their location.   But whether Tompos
should have responded at all is an issue beyond the scope of
Vehicle and Traffic Law § 1104.   Frezzell did not identify any
policy or departmental rule or regulation that Tompos's decision
to join the pursuit violated, and both Tompos and Brunjes
asserted that they had responded to emergency calls outside of
their designated precinct boundaries on other occasions and were


                               - 8 -
                                 - 9 -                           No. 188

unaware of any policy prohibiting such conduct.
            In the absence of any material questions of fact
regarding whether Tompos was speeding in poor road or traffic
conditions, was inattentive, or otherwise proceeded in an
unreasonably dangerous manner without caution or care for the
safety of bystanders and motorists, it cannot be said that Tompos
acted with "conscious indifference to the outcome" (Saarinen, 84
NY2d at 501; see Szczerbiak, 90 NY2d at 557; Quock v City of New
York, 110 AD3d 488, 489 [1st Dept 2013]; compare Campbell, 84
NY2d at 508, 511-512 [disputed issues of fact concerning whether
fire truck driver checked the color of the traffic light, looked
for oncoming traffic, accelerated, or utilized emergency signals
when crossing intersection against the right of way]).
Defendants were therefore entitled to summary judgment (see
Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
                                  ***
            Accordingly, the Appellate Division order should be
affirmed, with costs.
*   *   *    *   *   *   *   *    *      *   *   *   *   *   *    *   *
Order affirmed, with costs. Opinion by Judge Graffeo. Chief
Judge Lippman and Judges Read, Smith, Pigott, Rivera and
Abdus-Salaam concur.

Decided November 20, 2014




                                 - 9 -
