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

286
CA 12-02252
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.


JAYNE DODDS, AS EXECUTRIX OF THE ESTATE OF
LEONARD P. BORYSZAK, DECEASED, AND JAYNE DODDS,
AS EXECUTRIX OF THE ESTATE OF ELEANORE C.
BORYSZAK, DECEASED,
PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TOWN OF HAMBURG AND JOHN A. BLUMAN,
DEFENDANTS-APPELLANTS-RESPONDENTS.


BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
DEFENDANTS-APPELLANTS-RESPONDENTS.

BENNETT, SCHECHTER, ARCURI & WILL, LLP, CHEEKTOWAGA (JAMES F.
GRANVILLE OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (Timothy J. Walker, A.J.), entered May 3, 2012. The order
denied the motion of defendants for summary judgment and denied the
cross motion of Leonard P. Boryszak and Eleanore C. Boryszak for
partial summary judgment.

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

     Memorandum: On March 4, 2010, defendant John A. Bluman, a police
officer employed by defendant Town of Hamburg, was on patrol in an
unmarked police vehicle traveling southbound on Route 75 in the Town
of Hamburg when, at the intersection with Lake Shore Road, he saw a
vehicle traveling northbound with snow covering its windshield and the
driver operating the vehicle with his head stuck out of the side
window. As Bluman approached the traffic light at the intersection,
the light turned green, whereupon he accelerated quickly ahead of
other southbound traffic and watched other vehicles in two rear-view
mirrors in preparation for making a U-turn to pursue the vehicle with
the obstructed windshield. Bluman looked in his rear-view mirror,
observed a couple of vehicles that he believed were sufficiently
behind him, looked to his left, braked and started to make a U-turn.
Bluman engaged his left turn signal prior to beginning the turn, but
he did not activate the vehicle’s emergency lights or siren. As
Bluman began the U-turn from the right lane, another southbound
                                 -2-                           286
                                                         CA 12-02252

vehicle, traveling in the left southbound lane, crashed into the side
of Bluman’s police vehicle. That vehicle was operated by former
plaintiff Leonard P. Boryszak, and former plaintiff Eleanore C.
Boryszak was a passenger therein. They both died during the pendency
of this action, and plaintiff was substituted as the executrix of
their estates. Defendants appeal and plaintiff cross-appeals from an
order that denied defendants’ motion for summary judgment and denied
the former plaintiffs’ cross motion for partial summary judgment on
the issue of negligence.

     We agree with defendants that Supreme Court erred in denying
their motion for summary judgment, and we therefore modify the order
accordingly. At the time of the accident, Bluman was operating an
“authorized emergency vehicle” (Vehicle and Traffic Law § 1104 [a])
and was engaged in an emergency operation by virtue of the fact that
he was attempting a U-turn in order to “pursu[e] an actual or
suspected violator of the law” (§ 114-b). As the Court of Appeals
recognized in Kabir v County of Monroe (16 NY3d 217, 220), “the
reckless disregard standard of care in Vehicle and Traffic Law § 1104
(e) only applies when a driver of an authorized emergency vehicle
involved in an emergency operation engages in the specific conduct
exempted from the rules of the road by Vehicle and Traffic Law § 1104
(b). Any other injury-causing conduct of such a driver is governed by
the principles of ordinary negligence.” We conclude that, by
attempting to execute a U-turn, Bluman’s conduct was exempted from the
rules of the road by section 1104 (b) (4). As a result, his conduct
is governed by the reckless disregard standard of care in section 1104
(e).

     It is well settled that a “ ‘momentary judgment lapse’ does not
alone rise to the level of recklessness required of the driver of an
emergency vehicle in order for liability to attach” (Szczerbiak v
Pilat, 90 NY2d 553, 557). Here, Bluman acted under the mistaken
belief that the other southbound vehicles were sufficiently behind him
and that it was, at that moment, safe to execute a U-turn. This
“constituted 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, quoting Vehicle and Traffic Law § 1104 [e]).
“Given the evidence of precautions taken by [Bluman] before he
attempted his U-turn, we [conclude] that he did not act with
‘conscious indifference’ to the consequences of his actions” (id.).




Entered:   May 2, 2014                          Frances E. Cafarell
                                                Clerk of the Court
