FIRE TRUCK IN ACCIDENT NOT IN "EMERGENCY OPERATION" AND NOT ENTITLED TO "RECKLESS DISREGARD" STANDARD; DEFENSE SUMMARY JUDGMENT DENIED

Court: Supreme Court, Appellate Division, First Department, New York

Case: Lester Gonzalez v. City of New York

Date: Jan. 31, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury attorney)

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RELATED POSTS:

POLICE DENIED SUMMARY JUDGMENT IN PEDESTRIAN KNOCKDOWN BY POLICE CAR: (1) DEFENSE DID NOT MEET ITS BURDEN ON NO-FAULT "SERIOUS INJURY," AND, (2) VEHICLE WASN'T IN "EMERGENCY OPERATION" (Posted by Brooklyn injury attorney Gary E. Rosenberg on Feb 4, 2012)

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Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered February 10, 2011, which granted defendants‑respondents' motion for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion denied.

Defendant Duffy was driving a fire truck to the scene of an emergency when the truck collided with a van, injuring plaintiff, a passenger in the van. The record shows that Duffy had stopped on Third Avenue and was turning right onto 68th Street, with the traffic light in his favor, when the fire truck hit the van. Duffy was not engaged in any of the specific conduct that the driver of an authorized emergency vehicle in an emergency operation is permitted by Vehicle and Traffic Law Sec. 1104(b). He was not stopping, standing or parking in violation of the rules of the road, proceeding past a red signal or stop sign, speeding, or proceeding in the wrong direction or making an unlawful turn. Thus, his conduct is governed not by the reckless disregard standard of care in Vehicle and Traffic Law Sec. 1104(e) but by ordinary negligence principles (Kabir v. County of Monroe, 16 N.Y.3d 217, 920 N.Y.S.2d 268, 945 N.E.2d 461 [2011]; Tatishev v. City of New York, 84 A.D.3d 656, 657, 923 N.Y.S.2d 523 [2011]).

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