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

1081
CA 15-02090
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


JEFFREY RICE, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO, BUFFALO FIRE DEPARTMENT,
TIMOTHY M. FITZPATRICK, JR.,
DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANT.
(ACTION NO. 1.)
-----------------------------------------
JAMES FELIX OLIVER, PLAINTIFF-APPELLANT,

                    V

CITY OF BUFFALO, DEFENDANT-RESPONDENT,
ET AL., DEFENDANT.
(ACTION NO. 2.)


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

ROLAND M. CERCONE, PLLC, BUFFALO (ROLAND M. CERCONE OF COUNSEL), FOR
PLAINTIFF-APPELLANT JAMES FELIX OLIVER.

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (DAVID M. LEE OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeals from an order of the Supreme Court, Erie County (John M.
Curran, J.), entered March 4, 2015. The order, insofar as appealed
from, denied the cross motions of plaintiffs for partial summary
judgment.

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

     Memorandum: In this personal injury action, plaintiffs appeal
from an order that, inter alia, denied their respective cross motions
for partial summary judgment on the issue of liability. We affirm.

     During the afternoon of February 12, 2010, plaintiffs were
passengers in a vehicle that was proceeding through a green light at
the intersection of Washington Street and Chippewa Street in Buffalo,
when their vehicle was struck by a vehicle of defendant Buffalo Fire
Department (BFD), which was responding to a call regarding a
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                                                         CA 15-02090

suspicious package that possibly contained an explosive device. Rice
thereafter commenced an action against defendant City of Buffalo
(City), the BFD, and defendant Thomas M. Fitzpatrick, Jr., incorrectly
sued herein as Timothy M. Fitzpatrick, Jr., the fireman who had been
operating the BFD vehicle (collectively, defendants), among others,
seeking damages for injuries he allegedly sustained as a result of the
collision. Oliver commenced a separate action against the City, among
others, and Oliver’s action was subsequently consolidated with Rice’s
action.

     Defendants answered the complaints and thereafter moved for
summary judgment dismissing them, contending that the correct standard
to determine their potential liability was not ordinary negligence,
but reckless disregard for the safety of others, and that their
conduct had not risen to the level of reckless disregard as a matter
of law. Plaintiffs cross-moved for partial summary judgment on the
issue of liability, contending that the ordinary negligence standard
applied, and that defendants had violated that standard as a matter of
law. In support of their cross motions, plaintiffs submitted the
deposition transcript of Fitzpatrick, who testified that he “had
lights and sirens on” some of the time, but “would turn the siren on
and off” as he “was trying to communicate with the alarm office.”
Fitzpatrick further testified: “As I approached that intersection
with Washington . . . I was turning on and off the siren, [and] as I
got to that intersection just before I went in I turned the siren on.”
The court denied “all motions [and cross motions] on the issues of
reckless disregard and ordinary negligence.”

     The proponent on a summary judgment motion bears the initial
burden of establishing entitlement to judgment as a matter of law by
submitting evidence sufficient to eliminate any material issues of
fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). We
conclude that plaintiffs failed to meet that burden. Although the
driver of an emergency vehicle involved in an emergency operation may
be privileged to proceed through a steady red traffic signal (see
Vehicle and Traffic Law §§ 101, 1104 [a], [b] [2]), the injured
plaintiff may demonstrate that the driver was unprivileged if he or
she “did not, as required by statute, give an audible warning as [the
emergency vehicle] approached and entered the intersection against a
red signal” (Abood v Hosp. Ambulance Serv., 30 NY2d 295, 300). If
unprivileged, an ordinary negligence standard, rather than a reckless
disregard standard, applies (see generally § 1104 [e]; Saarinen v
Kerr, 84 NY2d 494, 501). Here, plaintiffs’ evidentiary submissions
raise issues of fact whether Fitzpatrick sounded his siren “loud
enough to be heard and . . . soon enough to be acted upon” (Abood, 30
NY2d at 299). We therefore conclude that the court properly denied
plaintiffs’ cross motions insofar as they sought to apply an ordinary
negligence standard (see generally Campbell v City of Elmira, 84 NY2d
505, 508).

     Contrary to Oliver’s further contention, we conclude that
Fitzpatrick was engaged in an “[e]mergency operation” inasmuch as the
undisputed evidence demonstrated that he was responding to a call
regarding a possible explosive device (Vehicle and Traffic Law § 114-
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                                                         CA 15-02090

b). In addition, the speed at which the emergency vehicle proceeded
into the intersection does not render Fitzpatrick’s conduct
unprivileged as a matter of law, but rather presents an issue of fact
whether he acted with reckless disregard for the safety of others (see
Connelly v City of Syracuse, 103 AD3d 1242, 1242-1243; see also PJI
2:79A).

     Finally, the contention raised by Oliver for the first time on
appeal that he is entitled to partial summary judgment on the issue of
liability on the ground that Fitzpatrick acted with reckless disregard
for the safety of others as a matter of law is not properly before us
(see Ciesinski v Town of Aurora, 202 AD2d 984, 985).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
