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

524
CA 11-01871
PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND SCONIERS, JJ.


NIKOLA K. NIKOLOV, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TOWN OF CHEEKTOWAGA, TOWN OF CHEEKTOWAGA POLICE
DEPARTMENT AND POLICE OFFICER TIMOTHY TURNBULL,
DEFENDANTS-RESPONDENTS.


LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (ARTHUR A. HERDZIK OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Paula L.
Feroleto, J.), entered June 3, 2011 in a personal injury action. The
order granted the motion of defendants for summary judgment dismissing
the complaint.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when the vehicle he was operating collided at an
intersection with a police vehicle operated by defendant Police
Officer Timothy Turnbull (defendant officer) for defendant Town of
Cheektowaga. Defendants thereafter moved to dismiss the complaint for
failure to state a cause of action and for summary judgment dismissing
the complaint. In support of the motion insofar as it sought summary
judgment dismissing the complaint, defendants contended, inter alia,
that the facts alleged did not rise to the level of “reckless
disregard” required for the imposition of liability under Vehicle and
Traffic Law § 1104 (e). Supreme Court granted the motion insofar as
it sought summary judgment dismissing the complaint on that ground.
We affirm.

     At the time of the collision, defendant officer was operating a
police vehicle while responding to a dispatch call concerning a driver
on the highway operating a vehicle in a reckless manner. There is no
dispute that defendant officer’s vehicle entered the intersection
against a red light.

     We conclude that defendant officer was operating an authorized
emergency vehicle while involved in an emergency operation (see
                                 -2-                           524
                                                         CA 11-01871

Vehicle and Traffic Law §§ 101, 114-b). Thus, the standard of
liability pursuant to Vehicle and Traffic Law § 1104 (e), i.e.,
reckless disregard for the safety of others, rather than that of
ordinary negligence, applies to his actions (see Criscione v City of
New York, 97 NY2d 152, 157-158; Hughes v Chiera, 4 AD3d 872).
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
plaintiff failed to raise a triable issue of fact in opposition to
that part of the motion (see Salzano v Korba, 296 AD2d 393, 394-395;
see generally Zuckerman v City of New York, 49 NY2d 557, 562).

     Proceeding through a red light is expressly set forth in Vehicle
and Traffic Law § 1104 (a) (2) as one of the privileges extended to an
authorized police vehicle engaged in an emergency operation (see Kabir
v County of Monroe, 16 NY3d 217, 222-223). Even assuming, arguendo,
that defendant officer had not engaged the police vehicle’s siren and
emergency lights, we conclude that such fact alone cannot establish a
predicate for liability inasmuch as the use of the siren and/or
emergency lights is not required for police vehicles to obtain the
benefits of the statute (see § 1104 [c]; Herod v Mele, 62 AD3d 1269,
1270, lv denied 13 NY3d 717). In addition, even assuming, arguendo,
that defendant officer experienced a short-term reduction in
visibility of the intersection where the collision occurred, we
conclude that such factor also does not constitute reckless disregard
for the safety of others under the circumstances of this case (see
Herod, 62 AD3d at 1270). With respect to the speed at which the
police vehicle entered the intersection, defendant officer testified
at his deposition that he was traveling at 15 miles per hour.
Plaintiff testified at his deposition, however, that he did not
observe the police vehicle at any time prior to the collision and thus
was not able to provide a competent estimate of its speed, and the
passenger in plaintiff’s vehicle testified at her deposition that she
was “not a driver” and “can’t tell” speed. “In the absence of a
showing that [the passenger] was qualified to give an estimate of a
specific speed at which a [vehicle] was traveling,” her deposition
testimony concerning the speed at which the police vehicle was
traveling constitutes inadmissible opinion evidence (Swoboda v We Try
Harder, 128 AD2d 862, 863; see Larsen v Vigliarolo Bros., 77 AD2d 562,
lv denied 52 NY2d 702). We therefore conclude that there is no
evidence that defendant officer “ ‘intentionally [did] 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
[did] so with conscious indifference to the outcome” (Saarinen v Kerr,
84 NY2d 494, 501).




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
