McKenica v. City of Tonawanda

239 A.D.2d 951, 661 N.Y.S.2d 814, 1997 N.Y. App. Div. LEXIS 6379

Opinion

Order unanimously affirmed with costs. Memorandum: Plaintiff commenced this action to recover damages for injuries he sustained when a police vehicle struck him as he crossed Niagara Street in the City of Tonawanda. At the time of the accident, defendant police officer was responding to a call for assistance from another officer. Defendants moved for summary judgment dismissing the complaint on. the ground that, pursuant to Vehicle and Traffic Law § 1104, civil liability may not be imposed upon them.

Supreme Court properly denied that motion. Defendants failed to establish their entitlement to judgment as a matter of law (see, CPLR 3212 [b]). Triable issues of fact exist with respect to the circumstances of the accident and whether defendant police officer drove his vehicle in reckless disregard for the safety of others (see, Vehicle and Traffic Law § 1104 [e]; Campbell v City of Elmira, 84 NY2d 505, 510-511; Schaeffer v DiDomenico, 238 AD2d 931; Rouse v Dahlem, 228 AD2d 777). (Appeal from Order of Supreme Court, Erie County, Flaherty, J.—Summary Judgment.) Present—Denman, P. J., Green, Do-err, Balio and Boehm, JJ.