The Defendants, County of Monroe; Monroe County Sheriff Department; Known or Unknown members of the Monroe County Sheriff Department and Supervisory Personnel; Monroe County Sheriff Patrick M. O'Flynn; and John DiDomenico individually and as a Monroe County Deputy Sheriff, submit this motion seeking summary judgment dismissing the Plaintiff's Complaint and Amended Complaint; or in the alternative, partial summary judgment. Defendants also seek costs of $100 for this motion and costs of $200 for this action. In the event the complaint is not dismissed, Defendants request an order bifurcating the issues of liability and damages.

The Plaintiff, Yasmin Kabir, submits a cross-motion seeking partial summary judgment on the issue of liability against the Defendants.

This action is the result of a Consolidation Order of two separate actions involving the same event and theories of recovery. The actions were consolidated into one action, under one index number. The Defendants papers refer in their arguments to Action 1 and Action 2; however, there are no separate actions per the consolidation order. This Court will not address separate actions; instead the decision will address the consolidated action.

The Plaintiff does not oppose the Defendants' motion seeking dismissal of the complaint as against the "Monroe County Sheriff's Department," the "Known or Unknown Members of the Monroe County Sheriff's Department," and the "Supervisory Personnel." The motion of the Defendants for summary judgment dismissing the Plaintiff's Complaint as against the "Monroe County Sheriff's Department," the "Known or Unknown Members of the Monroe County Sheriff's Department," and the "Supervisory Personnel" is GRANTED.

The motion of the Defendants for summary judgment dismissing the Plaintiff's Complaint and Amended Complaint is GRANTED.

I.FACTS

On September 20, 2004, Defendant John DiDomenico was employed by Defendant Monroe County Sheriff Patrick O'Flynn as a road patrol deputy when the accident at issue occurred. Deputy DiDomenico was on routine patrol, in a marked police vehicle owned by the Monroe County Sheriff, when he received a radio dispatch from a police dispatcher to respond to a stolen vehicle report at 68 High Manner Drive, in Henrietta, New York. Deputy DiDomenico was southbound in the marked police vehicle, on West Henrietta Road, in Brighton, New York, en route to the stolen vehicle call when he overheard on his police vehicle's radio that Monroe County Sheriff's Deputy Richard Dalberth was dispatched to a burglar alarm at 52 Leo Road, in Henrietta, New York.

The burglar alarm call was given a priority one designation by the police dispatcher. Priority one [*2]is the highest priority that a call can be given. The police dispatcher requested a backup unit for the burglar alarm call. Backup is support provided by one deputy sheriff to assist the initially responding deputy sheriff on a particular call. It is standard operating procedure for backup support to be provided on priority one calls handled by Monroe County Sheriff's deputies.

Deputy DiDomenico was southbound on West Henrietta Road, approaching Brighton Henrietta Town Line Road, when he acknowledged receipt of the radio dispatch and advised the police dispatcher by radio that he would provide backup to Deputy Dalberth for the burglar alarm call, before he responded to the stolen vehicle call. A dispatch signal flashed on the mobile data terminal ("MDT") in the marked police vehicle that Deputy DiDomenico was operating. A dispatch signal indicates that a call that has been radio dispatched is being electronically transmitted with additional information. Deputy DiDomenico touched the MDT screen to view the job card. The job card provides detailed information about a particular call, including the names of cross streets, to assist in locating the address in issue.

Deputy DiDomenico did not know where Leo Road was located, so he looked down at the MDT to view the cross streets on its screen, while he was en route to the burglar alarm call. Before Deputy DiDomenico looked down at the MDT, southbound traffic on West Henrietta Road, was moving slowly in front of his vehicle. Deputy DiDomenico was traveling at approximately 25 to 30 miles an hour, in a 40 miles per hour speed limit area on West Henrietta Road, when he removed his vision from that roadway to look down at the MDT.

When Deputy DiDomenico looked back up after viewing the MDT, traffic in front of him had slowed. Deputy DiDomenico immediately applied his brakes. He was unable to stop before colliding with the automobile owned and operated by Plaintiff Yasmin Kabir at the intersection of West Henrietta Road and Brighton Henrietta Town Line Road, on September 20, 2004, at approximately 4:04 p.m.

The accident occurred moments after Deputy DiDomenico received, acknowledged and accepted the burglar alarm call. Deputy DiDomenico had not yet activated the emergency equipment, i.e., siren and flashing lights, on the police vehicle prior to colliding with Kabir's automobile. Deputy DiDomenico collided with Kabir's vehicle at a low speed and caused minor damage to the rear portion of Kabir's vehicle.

II. LAW

The relevant Vehicle and Traffic provisions are set forth.

§ 1104. Authorized emergency vehicles.

(a)The driver of an authorized emergency vehicle, when involved in an emergency operation, may exercise the privileges set forth in this section, but [*3]subject to the conditions herein stated.

(b)The driver of an authorized emergency vehicle may:

1.Stop, stand or park irrespective of the provisions of this title;

2.Proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation;

3.Exceed the maximum speed limits so long as he does not endanger life or property;

4.Disregard regulations governing directions of movement or turning in specified directions.

(c)Except for an authorized emergency vehicle operated as a police vehicle or bicycle, the exemptions herein granted to an authorized emergency vehicle shall apply only when audible signals are sounded from any said vehicle while in motion by bell, horn, siren, electronic device or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted lamp so that from any direction, under normal atmospheric conditions from a distance of five hundred feet from such vehicle, at least one red light will be displayed and visible.

(d)An authorized emergency vehicle operated as a police, sheriff or deputy sheriff vehicle may exceed the maximum speed limits for the purpose of calibrating such vehicles' speedometer. Notwithstanding any other law, rule or regulation to the contrary, a police, sheriff or deputy sheriff bicycle operated as an authorized emergency vehicle shall not be prohibited from using any sidewalk, highway, street or roadway during an emergency operation.

(e)The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.

(f)Notwithstanding any other law, rule or regulation to the contrary, an ambulance operated in the course of an emergency shall not be prohibited from using any highway, street or roadway; provided, however, that an authority having jurisdiction over any such highway, street or roadway may specifically prohibit travel thereon by ambulances if such authority shall deem such travel to be extremely hazardous and would endanger patients being transported thereby

§101.Authorized emergency vehicle. Every ambulance, police vehicle or bicycle, correction vehicle, fire vehicle, civil defense emergency vehicle, emergency ambulance service vehicle, blood delivery vehicle, environmental emergency response vehicle, sanitation patrol vehicle, hazardous materials emergency vehicle and ordnance disposal vehicle of the armed forces of the United States. [Emphasis supplied.]

§132-a.Police vehicle. Every vehicle owned by the state, a public authority, a county, town, city or village, and operated by the police department or law enforcement agency of such governmental unit or by a constable or police constable of a town when acting pursuant to his special duties. Any other vehicle operated by a chief or deputy or assistant chief of a police department, a sheriff, undersheriff or regular deputy sheriff, and a vehicle owned and operated by the law enforcement unit of a public or private corporation authorized by law to maintain a unit for the enforcement of law on the property of such corporation shall be a police vehicle only for the purposes of section one hundred one of this chapter.

§114-b.Emergency operation. The operation, or parking, of an authorized emergency vehicle, when such vehicle is engaged in transporting a sick or injured person, transporting prisoners, delivering blood or blood products in a situation involving an imminent health risk, pursuing an actual or suspected violator of the law, or responding to, or working or assisting at the scene of an accident, disaster, police call, alarm of fire, actual or potential release of hazardous materials or other emergency. Emergency operation shall not include returning from such service. [Emphasis supplied.]

The driver of an authorized emergency vehicle, when involved in an emergency operation, may exercise the privileges set forth in this section, but subject to the conditions herein stated.

(Vehicle and Traffic Law §1104[a]). If the Defendant deputy was in an "authorized emergency vehicle" involved in an "emergency operation," then the Defendants are liable only if his conduct demonstrates a reckless disregard for the safety of others (Vehicle and Traffic Law §1104-a).

1.Sheriff's Patrol Car is an Authorized Emergency Vehicle.

An authorized emergency vehicle is defined, among other vehicles, as every "police vehicle or bicycle" (Vehicle and Traffic Law §101). A police vehicle is defined, among other vehicles, as "[a]ny other vehicle operated by . . . a sheriff, undersheriff or regular deputy sheriff . . . shall be a police vehicle only for the purposes of section one hundred one of this chapter" (Vehicle and Traffic Law §132-a). This reference to Section 101 relates directly to the definition of an "authorized emergency vehicle." Under these Vehicle and Traffic Law definitions a vehicle operated by a sheriff or regular deputy sheriff is a police vehicle for the definition of an "authorized emergency vehicle."

Although the Plaintiff offers extensive interpretation and grammatical arguments for how the Vehicle and Traffic Law does not define a vehicle being driven by a sheriff deputy as a police vehicle, the statutes do not support such a conclusion. The Plaintiff's arguments would conclude that every other police department vehicle is a police vehicle under the Vehicle and Traffic Law except those driven by a deputy of the sheriff. However, the Courts of this state have applied the qualified exemptions for authorized emergency vehicles to sheriff's vehicles.

The deputy Sheriff's patrol car is an "authorized emergency vehicle" pursuant to the definitions set forth in the statute (Vehicle and Traffic Law §§101; 132-a; 1104; see Gonyea v County of Saratoga, 23 AD3d 790 [3d Dept. 2005]; O'Banner v County of Sullivan, 16 AD3d 950 [3d Dept. 2005]).

2. Emergency Operation

As an authorized emergency vehicle, when the vehicle is "involved in an emergency operation", it is afforded all the benefits under this statute. An emergency operation is defined as "[t]he operation . . . of an authorized emergency vehicle, when such vehicle is engaged in . . . pursuing an actual or suspected violator of the law, or responding to . . . [a] police call" (Vehicle and Traffic Law §114-b). [*6]

"Prevailing case law leaves no doubt that a police officer in a patrol vehicle responding to a police call or dispatch is engaged in an emergency operation within the meaning of Vehicle and Traffic Law §114-b" (O'Banner at 952; Criscione v City of New York, 97 NY2d 152 [2001]; Szczerbiak v Pilat, 90 NY2d 553 [1997]; Hughes v Chiera, 4 AD3d 872 [4th Dept. 2004]). The deputy sheriff involved in this accident was responding to a stolen vehicle call. While en route there was dispatch of another sheriff to a burglar alarm on the deputies radio, with a request for backup. Deputy DiDomenico was in the vicinity and advised the police dispatcher he would provide backup for the burglar alarm call. Deputy DiDomenico was driving a patrol car and was responding to a police call; thus as a matter of law he was engaged in an "emergency operation" within the meaning of §114-b of the Vehicle and Traffic Law.

Again the Plaintiff argues that grammar and interpretation of all the language contained in Vehicle and Traffic Law §1104 leads to the conclusion that a sheriff's patrol car is treated differently than every other "police vehicle." Plaintiff concludes that a sheriff's patrol car, unlike every other police department patrol car, is required to have its lights and siren on in order for the protections afforded by §1104 to apply. This Court disagrees with the Plaintiff's conclusions. A sheriff's patrol car is an "authorized emergency vehicle" operated as a police vehicle, such that the requirements under §1104(c) for lights and sirens do not apply.

The qualified exemptions provided under §1104 for an authorized emergency vehicle involved in an emergency operation apply to the deputy sheriff vehicle involved in the accident in this case (see Gonyea v County of Saratoga, 23 AD3d 790 [3d Dept. 2005]; O'Banner v County of Sullivan, 16 AD3d 950 [3d Dept. 2005]).

3. Heightened Standard of Care

The Deputy Sheriff is entitled to the qualified immunity afforded by §1104 of the Vehicle and Traffic Law where he can be held liable only if his conduct demonstrates a reckless disregard for the safety of others (Vehicle and Traffic Law §1104; Saarinen v Kerr, 84 NY2d 494,501 [1994]; Criscione v City of New York, 97 NY2d 152 [2001]; Hughes at 873; Meade v Chestnut, 53 AD3d 645 [3d Dept. 2008]; Burrell v City of New York, 49 AD3d 482 [2d Dept. 2008]). Case law has established the reckless disregard standard to be applied under §1104 of the Vehicle and Traffic Law.

[Reckless disregard is defined as] the conscious or intentional doing of an act of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow, and done with conscious indifference to the outcome (citations omitted).

(Hughes at 873 [4th Dept. 2004]; Szczerbiak at 556-57; Gonyea at 792). The Courts have applied this standard in summary judgment motions and granted dismissal of the action (Hughes at 873; Palmer v City of Syracuse, 13 AD3d 1229 [4th Dept. 2004]; Gonyea at 792; Meade at 645).

The Courts have interpreted this heightened standard of care for authorized emergency vehicles when involved in an emergency operation. "More than a momentary judgment lapse, such as the officer's [*7]momentarily looking down, is required to satisfy the reckless disregard test" (Szczerbiak at 556; Hughes at 873; Palmer at 1230).

B.APPLYING THE STANDARD OF CARE

Under the totality of the circumstances presented by the evidence, the Defendants have established as a matter of law that Deputy DiDomenico's conduct does not rise to the level of reckless disregard. The deputy was responding as backup to a burglar alarm call. A dispatch signal flashed on the mobile data terminal in the policy vehicle and the deputy touched the screen to view the job card containing additional information about the call. The deputy looked down to view the cross streets on its screen. The deputy was traveling approximately 25-30 miles an hour when he looked at the screen. When he looked back up traffic had slowed and he was unable to stop before colliding with the Plaintiff's vehicle. The deputy had not turned his lights or siren on at the time of the accident, however, the deputy sheriff was not required to have lights and sirens on in order for the exemptions afforded pursuant to §1104 to apply (Vehicle and Traffic Law §1104[c]). There was minor damage to the rear portion of Plaintiff's car.

The patrol car driven by the Defendant Sheriff deputy is an authorized emergency vehicle involved in an emergency operation at the time of the accident. As an authorized emergency vehicle operated as a police vehicle, lights and sirens were not required for the statutory exemptions to apply. The evidence must demonstrate a reckless disregard for the safety of others. Although the deputies conduct in looking down at his screen while still moving may qualify as a momentary judgment lapse, this is not sufficient to satisfy the reckless disregard test created by Vehicle and Traffic Law §1004 (see Szczerbiak at 556; Hughes at 873; Palmer at 1230).

The Defendants' have met their burden on this summary judgment motion for dismissal of the Plaintiff's Complaint as a matter of law.

The Court has applied the evidence in this case to the reckless disregard standard. There is no conscious or intentional doing of an act of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow and doing the act with a conscious indifference to the outcome. There is not a question of fact presented under the reckless disregard standard to be applied pursuant to Vehicle and Traffic Law §1104 to an authorized emergency vehicle. This higher standard was created by the Legislature and interpreted by the Courts to allow police and sheriff's to perform their duties to protect citizens. This Court determines that the Plaintiff fails to raise an issue of fact on whether the deputy sheriff acted with reckless disregard.

C.CONCLUSION

The motion of the Defendants for summary judgment dismissing the Plaintiffs complaint as against [*8]the Defendants is GRANTED.

The motion of the Plaintiff for partial summary judgment on liability is DENIED.

The request of the Defendants to bifurcate the trial is moot; and the request for costs for this motion and for the action are DENIED.

All other motion requests are DENIED.

ORDERED that on the consent of the Plaintiff, the motion of the Defendants for summary judgment dismissing the Plaintiff's Complaint as against the "Monroe County Sheriff's Department," the "Known or Unknown Members of the Monroe County Sheriff's Department," and the "Supervisory Personnel" is GRANTED; it is further

ORDERED that the motion of the Defendants, County of Monroe; Monroe County Sheriff Patrick M. O'Flynn; and John DiDomenico individually and as a Monroe County Deputy Sheriff, for summary judgment dismissing the Plaintiff's Complaint and Amended Complaint is GRANTED; it is further

ORDERED that the motion of the Defendants seeking costs of $100 for this motion and costs of $200 for this action are DENIED; it is further

ORDERED that the motion of the Plaintiff, Yasmin Kabir, for partial summary judgment on the issue of liability against the Defendants is DENIED; it is further

ORDERED that all other motion requests are DENIED; and it is further

ORDERED that the Complaint and Amended Complaint of the Plaintiff, Yasmin Kabir, are DISMISSED.

Dated:September 26, 2008

Rochester, New York

________________________________________ [*9]

Thomas A. Stander

Supreme Court Justice C:\htformat\f5200080.txt