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

952.2
CA 13-02214
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND WHALEN, JJ.


CHARLES G. MICHAELS AND ELIZABETH MICHAELS,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

MATTHEW DRAKE AND CITY OF ROCHESTER,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 2.)


WILLIAM P. SMITH, JR., ROCHESTER, FOR PLAINTIFFS-APPELLANTS.


     Appeal from a judgment of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered June 4, 2013. The judgment dismissed the
complaint.

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

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by plaintiff Charles G. Michaels when the vehicle
he was driving collided with a vehicle driven by defendant Matthew
Drake, a police officer with defendant City of Rochester. Following a
bench trial, Supreme Court found in favor of defendants and dismissed
the complaint. We affirm. Viewing the evidence in the light most
favorable to sustain the judgment following this bench trial (see
Wayne Coop. Ins. Co. v Woodward, 21 AD3d 1270, 1272), we conclude that
a fair interpretation of the evidence supports the court’s verdict.
It is undisputed that at the time of the accident Drake was operating
his vehicle in response to a dispatch call concerning a domestic
dispute. He was thus engaged in the emergency operation of a vehicle
as defined in Vehicle and Traffic Law § 114-b as a matter of law (see
Criscione v City of New York, 97 NY2d 152, 154; Nikolov v Town of
Cheektowaga, 96 AD3d 1372, 1373), and the applicable standard of
liability is reckless disregard for the safety of others rather than
ordinary negligence (see § 1104 [e]; Criscione, 97 NY2d at 154; Herod
v Mele, 62 AD3d 1269, 1270, lv denied 13 NY3d 717). Although Drake
admitted that he exceeded the speed limit in responding to the
dispatch, speeding is expressly privileged under Vehicle and Traffic
Law § 1104 (b) (3) provided that the driver “does not endanger life or
property” (id.; see Saarinen v Kerr, 84 NY2d 494, 499; Herod, 62 AD3d
at 1270), and his conduct did not constitute the type of recklessness
necessary for liability to attach (see Szczerbiak v Pilat, 90 NY2d
                                 -2-                           952.2
                                                         CA 13-02214

553, 557; Dodds v Town of Hamburg, 117 AD3d 1428, 1429-1430).




Entered:   September 26, 2014                  Frances E. Cafarell
                                               Clerk of the Court
