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

547
CA 13-00383
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.


CHALINA RUIZ, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

BRENDAN L. COPE AND CITY OF SYRACUSE,
DEFENDANTS-APPELLANTS.


ROBERT P. STAMEY, CORPORATION COUNSEL, SYRACUSE, D.J. & J.A. CIRANDO,
ESQS. (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

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


     Appeal from an order and judgment (one paper) of the Supreme
Court, Onondaga County (John C. Cherundolo, A.J.), entered November
29, 2012. The order and judgment awarded plaintiff money damages upon
a nonjury verdict.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: Defendants appeal from an order and judgment
awarding plaintiff damages following a nonjury trial. Plaintiff
commenced this action seeking to recover damages for injuries she
allegedly sustained when the vehicle she was driving collided with a
Syracuse Police Department (SPD) vehicle being driven by Brendan L.
Cope (defendant), a police officer who was in the process of “field
training” under the supervision of a sergeant. Shortly before the
collision at a blind intersection, defendant received a “priority
one,” “shots-fired” radio call, and the sergeant activated the
vehicle’s siren and lights. As defendant’s vehicle approached the
intersection, his direction of travel had a red light, and the cross
street on which plaintiff was driving had a green light. Defendant
failed to come to a complete stop prior to entering the intersection,
in violation of SPD rules and regulations. Witness testimony and the
physical evidence, including a 45-foot skid mark, presented
conflicting accounts whether defendant slowed down or came to a near
stop prior to entering the intersection and whether he failed to look
left, i.e., in plaintiff’s direction.

     Defendants contend, inter alia, that Supreme Court erred in
denying that part of their pretrial motion for summary judgment
dismissing the complaint on the ground that defendant’s actions do not
rise to the level of recklessness required under Vehicle and Traffic
                                 -2-                           547
                                                         CA 13-00383

Law § 1104. We reject that contention. Although defendants met their
initial burden on the motion, we conclude that plaintiff raised a
triable issue of fact whether defendant acted with “reckless disregard
for the safety of others” in his operation of the police vehicle (§
1104 [e]; see generally Saarinen v Kerr, 84 NY2d 494, 501).
Specifically, plaintiff submitted evidence that defendant was
traveling at an excessive rate of speed; that defendant did not slow
down or look left as he approached the intersection; that defendant’s
direction of travel was controlled by a red light; that a building
obstructed defendant’s and plaintiff’s views of each other; that there
was other vehicular traffic in the vicinity; that the roads were wet;
and that defendant had violated the rules and regulations of the SPD
(see Ham v City of Syracuse, 37 AD3d 1050, 1052, lv dismissed 8 NY3d
976; Allen v Town of Amherst, 294 AD2d 828, 829, lv denied 3 NY3d 609;
see generally Elnakib v County of Suffolk, 90 AD3d 596, 597).

     Contrary to defendants’ further contention, we conclude that the
court’s finding following the trial that defendant had “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 ha[d] done so with conscious indifference to the
outcome” was based on a fair interpretation of the evidence (Ham, 37
AD3d at 1052 [internal quotation marks omitted]; see Campbell v City
of Elmira, 84 NY2d 505, 508, 510-511; see generally Matter of City of
Syracuse Indus. Dev. Agency [Alterm, Inc.], 20 AD3d 168, 170).
Furthermore, the court’s apportionment of liability is amply supported
by the record (cf. Don Vito v State of New York, 182 AD2d 1070, 1071).

     Likewise, we reject defendants’ contention that the court’s
determination that plaintiff sustained a “serious injury” under the
90/180-day and significant limitation of use categories of Insurance
Law § 5102 (d) is not supported by objective medical evidence.
Plaintiff provided objective evidence of her injuries in the form of
her chiropractor’s quantification of her loss of range of motion and
observations of muscle spasms, MRI reports, and an EMG study (see
generally Limardi v McLeod, 100 AD3d 1375, 1376-1377; Frizzell v
Giannetti, 34 AD3d 1202, 1203).

     Lastly, defendants failed to preserve for our review their
contention that plaintiff’s vicarious liability claim against
defendant City of Syracuse (City) should have precluded her negligent
training and supervision claim against the City (see Ciesinski v Town
of Aurora, 202 AD2d 984, 985). In any event, although we agree with
defendants that the undisputed fact that defendant was acting within
the scope of his employment should have precluded plaintiff as a
matter of law from bringing a claim that the City was liable for the
negligent training and supervision of defendant (see Leftenant v City
of New York, 70 AD3d 596, 597; Matter of Trader v State of New York,
277 AD2d 978, 978), we conclude that the court’s determination that
the City negligently trained and supervised defendant is harmless (see
CPLR 2002), inasmuch as the City is nonetheless vicariously liable
under the doctrine of respondeat superior (see General Municipal Law §
                                 -3-                           547
                                                         CA 13-00383

50-c; see generally Pacelli v City of Syracuse, 305 AD2d 1062, 1063).




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