New York State Court of Claims

New York State Court of Claims

DALE & GERE v. THE STATE OF NEW YORK, #2001-019-574, Claim No. 98032, Motion No. M-63714


State's motion for summary judgment involving high-speed police pursuit is denied.

Case Information

WANDA DALE & BRENT GERE, Individually and as parents and natural guardians of JESSICA GERE, deceased, as distributees of JESSICA GERE, and as Limited Co-Administrators of the Estate of JESSICA GERE
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
WILLIAM M. HIGGINS, ESQ.BY: Michael W. Malarney, Esq., of counsel
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 13, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant State of New York (hereinafter "State") moves for summary judgment pursuant to CPLR 3212. Claimants oppose the motion.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed March 25, 1998.
  2. Verified Answer, filed April 28, 1998.
  3. Notice of Motion No. M-63714, dated July 3, 2001, and filed July 5, 2001.
  4. Affirmation of James E. Shoemaker, AAG, in support of motion, dated July 3, 2001.
  5. State's Memorandum of Law, in support of motion, dated July 3, 2001, with attached exhibits.
  6. Answering Affidavit of William M. Higgins, Esq., in opposition to motion, sworn to August 22, 2001 and filed September 5, 2001, with attached exhibits.
This Claim arose from a fatal one-car crash on November 1, 1996, following a high-speed police pursuit on Route 390 southbound ending in the Town of Wayland, New York, in which the front seat passenger in the pursued vehicle, Jessica Gere, was killed after said vehicle lost control and flipped end-over-end. Additional details of the events leading up to this accident are described hereinbelow. In support of their respective positions, the parties submit various documents taken from the instant proceeding, a companion Supreme Court action, and a local criminal court proceeding including deposition transcripts, memorandums, and supporting depositions of State troopers, a Village of Wayland police officer;[1] other witnesses - both civilian and police, as well as the accident reports.

The following facts are undisputed: On November 1, 1996, at approximately noon, Trooper Mark D. Miller was on routine patrol on Route 36 in the Town of Groveland, Livingston County when he noticed a white vehicle (hereinafter sometimes "Pursued Vehicle") cross the centerline more than once and driving slower than the posted speed limit. Soon thereafter, Trooper Miller witnessed the Pursued Vehicle turn into a restricted area of the Groveland Correctional Facility. Trooper Miller positioned his vehicle on a nearby local road so that he could pull over the Pursued Vehicle when it pulled back onto Route 36. The Pursued Vehicle passed Trooper Miller enabling him to observe four "younger people" inside the vehicle, although he could not recollect at his deposition whether he informed radio dispatch of this fact. (Exhibit A to State's Memorandum of Law, pp 10 & 19). The Pursued Vehicle then stopped at a stop sign a short distance away. Trooper Miller then activated his lights, although not his siren, to signal the vehicle to pull over, and radioed another Trooper he knew to be in the area for assistance. At this stage, Trooper Miller indicated that he would have cited the driver for failure to keep right based upon his action of crossing the centerline. However, Trooper Miller conceded that he was more concerned with the vehicle's foray into the restricted area of a correctional facility, even though such activity did not amount to any statutory violation of which he was aware.

The Pursued Vehicle started to slow and pull over in response to Trooper Miller's emergency signal when it "suddenly accelerated southbound on Route 36" and entered the on-ramp at Exit 6 of Route 390. (Exhibit A to State's Memorandum of Law, pp 11-12). As Trooper Miller entered the on-ramp, he saw the Pursued Vehicle just completing a 180-degree spin now facing him head-on. The Pursued Vehicle then left the roadway, drove across a grassy median, and proceeded on Route 390 southbound. Both the Pursued Vehicle and Trooper Miller were approaching speeds of 100 m.p.h. At this juncture, Trooper Miller indicated that additional charges of speeding and reckless driving would have been appropriate.

Trooper Miller was then advised by radio dispatch that Trooper Robert J. Hodges was ahead of the chase located near Exit 5 on Route 390. Trooper Hodges had positioned his troop car in the passing (left) lane ahead of the on-coming vehicles, but the Pursued Vehicle soon passed him in the driving (right) lane. Trooper Hodges never engaged in any tactical maneuvers. (Exhibit A to State's Memorandum of Law, p 21). Trooper Hodges positioned his car behind Trooper Miller's troop car with his emergency lights activated. All three vehicles soon crossed the county line into Steuben County. Trooper Miller indicates that radio dispatch advised him they were attempting to get a "zone three car" ahead of their location. (Exhibit A to State's Memorandum of Law, p 22).

Next, Trooper Paul J. Welytok joined the pursuit. Trooper Welytok, was located ahead of the pursuit and had positioned his troop car across the centerline while traveling at a speed of approximately 55-65 m.p.h., executing what is called a rolling or moving roadblock.[2] A "moving roadblock" is defined as "[t]he surrounding of a fleeing vehicle with pursuit vehicles which are then slowed to a stop along with the pursued vehicle." (Exhibit G to State's Memorandum of Law, section 30B2[c][1]). The Pursued Vehicle and Trooper Miller were both still traveling between 90 and 100 m.p.h. Trooper Welytok abandoned his moving roadblock maneuver by moving back into the driving (right) lane when it became apparent to him that the Pursued Vehicle was not going to slow down, thus allowing the Pursued Vehicle to pass in the left lane. Trooper Welytok then got in line behind Troopers Miller and Hodges.

Next, both Troopers Miller and Welytok observed a white police vehicle, they later learned was operated by Village of Wayland Police Officer John M. Adams, enter Route 390 from the entrance ramp at Exit 3 ahead of the Pursued Vehicle.[3] Each of the three Troopers, Miller, Hodges and Welytok, observed Police Officer Adams execute a moving roadblock at an approximate speed of between 50 to 60 m.p.h. on the centerline between the passing (left) and driving (right) lanes. Officer Adams maintained his position as the Pursued Vehicle approached without reducing its speed. Trooper Miller observed the Pursued Vehicle in the passing (left) lane hit its brake lights as it approached the Wayland police vehicle. Trooper Miller saw the Pursued Vehicle then make an "abrupt right-hand maneuver" to the right in an attempt to pass the Wayland police vehicle, travel across almost three lanes to the right to the "wire guide rail", when it "suddenly jerked to the left and started spinning out of control." (Exhibit A to State's Memorandum of Law, p 29). The Pursued Vehicle began to lose control, crossed back over all southbound lanes of traffic, through a paved U-turn in the median, flipping end-over-end, ultimately coming to rest upside-down beyond the northbound lanes of traffic.

Altogether, this high-speed pursuit lasted approximately 15 minutes extending over 15-17 miles. Based upon the photographs submitted herewith, it appears that Route 390, on which the majority of this chase occurred, is a four-lane highway with two lanes each going southbound and northbound, separated by a grassy median. At the location of the accident, Route 390 is relatively straight and level with a slight right curve and downgrade. The weather was clear and the roadway was dry. The accident transpired between approximately noon and 12:15 p.m. so there was abundant daylight.

The primary factual areas on which these parties disagree and on which this record is unclear are whether Trooper Hodges or any other trooper directed Village Police Officer Adams to attempt the second moving roadblock and the substance of the radio transmissions between the Troopers, the Village Police Officer and radio dispatch. For instance, Officer Adams indicates that he radioed the State to see if they wanted him to "get ahead"[4] of the Pursued Vehicle and someone, he believes Trooper Hodges, gave him the okay. (Exhibit H to Affirmation in Opposition, p 22). Trooper Hodges himself conceded that it was "not impossible" that he gave such permission. (Exhibit F to Affirmation in Opposition, p. 19). Trooper Miller did not recall hearing any such transmission while monitoring car-to-car transmissions, but specifically denied contacting any other police agency or requesting such assistance. However, a log of the radio transmissions does reflect Trooper Miller requesting "additional vehicles to try to get this vehicle stopped". (Exhibit I to Affirmation in Opposition, ¶ 7; see also Exhibit A to State's Memorandum of Law, p 20). Trooper Welytok could not recall hearing any such transmission, but was able to state with certainty that he did not personally issue any such instruction.

The identity of the operator and occupants in the Pursued Vehicle merit mention at this point, although unknown to law enforcement officers during the duration of this chase. The driver of the Pursued Vehicle was Adam Kitt, 15 years old, unlicensed, and the boyfriend of the decedent Jessica Gere, 13 years old, both of whom were skipping school that day. Some of the submitted papers suggest that Jessica Gere may have run away from home the night before and that Adam Kitt had stolen a car to assist her. The two backseat passengers, Neil Krause, age 15, and Adrian Stevens, age 14, were also skipping school, although it is not clear whether any of the passengers, including the decedent, were aware that the vehicle was stolen.

By way of this motion, the State contends that it is entitled to summary judgment based upon the following theories: (1) the culpable conduct of Jessica Gere prevents her recovery under the law; (2) the choices and actions of the driver of the Pursued Vehicle, Adam Kitt, and not the actions of any police officers, were the sole proximate cause of the accident that killed Jessica Gere; and (3) the Troopers' actions do not meet the applicable reckless disregard standard.[5] (State's Memorandum of Law).

Claimants argue in opposition that questions of fact exist in relation to how this accident occurred and whether the Troopers acted in reckless disregard of Vehicle and Traffic Law 1104 and State Police Field Manual regulations. More specifically, Claimants argue that these Troopers violated the following provisions of the State Police Field Manual: (1) section 30B2(e)(7) stating that no more than 2 vehicles should be engaged in a pursuit absent supervisor's authority; (2) section 30B2(j)(1) that no outside agency should be involved in a pursuit absent supervisory approval; (3) section 30B2(d)(2) that the nature of the offense should be considered in initiating a pursuit and on a continuing basis; and (4) section 30B2(f)(3) that moving roadblocks should only be used with supervisory approval, unless extraordinary or life- threatening circumstances exist.


On a motion for summary judgment, the moving party must present evidentiary facts that establish the party's right to judgment as a matter of law, while the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). The Court must accept the non-moving party's evidence as true and grant him every favorable inference. (Hartford Ins. Co. v General Acc. Group Ins. Co., 177 AD2d 1046, 1047). If the moving party satisfies its initial burden, then the burden shifts to the non-moving party to come forward "[t]o produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action [citation omitted]." (Alvarez v Prospect Hosp., 68 NY2d 320, 324).

It is well-settled that "[a] police officer engaged in a high-speed pursuit of another vehicle must comply with the restrictions set forth in Vehicle and Traffic Law § 1104, as well as departmental procedures (see, Palella v State of New York, 141 AD2d 999, 1000; Kerwin v County of Broome, 134 AD2d 812, 813, lv denied 71 NY2d 802)." (King v Village of Cobleskill, 237 AD2d 689, 690). Section 1104 of the Vehicle and Traffic Law sets forth certain rules of the road from which emergency vehicles are granted a privilege. (Vehicle and Traffic Law 1101 [b] [1] - [4]). These privileges, however, are qualified by subdivision (e) which states that "[t]he 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." Claimants do not dispute the applicable standard of care is the higher standard of reckless disregard, rather than mere negligence. As such, the State is entitled to summary judgment if it can establish that the conduct of these Troopers on the facts at hand do not rise to the level of reckless disregard as a matter of law.

Reckless disregard has been described as requiring "[e]vidence that ‘the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow' and has done so with conscious indifference to the outcome (Prosser and Keeton, Torts § 34, at 213 [5th ed]; see, Restatement [Second] of Torts § 500)." (Saarinen v Kerr, 84 NY2d 494, 501; see also, Szczerbiak v Pilat, 90 NY2d 553, 557). Stated another way, "[p]arties may be found to have acted in violation of the statutory formulation when they consciously-and, thus, with general intentionality, not necessarily with intent to cause particular injury-disregard known serious risks of harm. The decision to ignore a grave risk, which is likely to result in harm to others, may satisfy the intentional aspect sufficient to impose liability [citations omitted]". (Campbell v City of Elmira, 84 NY2d 505, 510-511). Significantly, reckless disregard "[r]equires a showing of more than a momentary judgment lapse". (Saarinen v Kerr, supra, 84 NY2d, at 502). Also, the conduct under review must be "[v]iewed at the time and under the circumstances in which he acted and not in retrospect [citation omitted]...." (King v Village of Cobleskill, supra, 237 AD2d, at 692). Finally, violations of the State Police Field Manual, a guideline, are instructive, although not dispositive, in the determination of reckless disregard.[6] (Saarinen v Kerr, supra, 84 NY2d, at 503, n 3).

The factors that should be considered in determining whether conduct rises to the level of reckless disregard include, but are not limited to, the following: the nature of the original offense; the length (in miles) of the chase; the duration (in time) of the chase; weather conditions; road conditions; traffic volume; neighborhood characteristics; visibility; and speed.[7] Many of these factors are also listed in the State Police Field Manual as influencing, on a cumulative and continuing basis, the decision whether to terminate a pursuit. (Exhibit G to State's Memorandum of Law, section 30B2[d][2]). None of these factors, however, are necessarily dispositive of the issue. (Powell v City of Mount Vernon, 228 AD2d 572, lv denied 89 NY2d 807).

There are numerous cases in which the conduct of law enforcement officers engaged in police chases have been found insufficient to support a showing of reckless disregard as a matter of law. In still other cases, both jury and non-jury verdicts finding reckless disregard have been reversed at the appellate level.[8]

Perhaps indicative of the high standard of reckless disregard, cases in which the conduct of an officer has been deemed to be in reckless disregard are limited. (Campbell v City of Elmira, supra, 84 NY2d 505 [jury verdict affirmed finding that an experienced fire truck driver acted with reckless disregard in entering intersection against a red light in disregard of statutorily required attentiveness]). Two cases which are particularly instructive in outlining additional characteristics of reckless disregard are King v Village of Cobleskill, supra, 237 AD2d 689, and Rouse v Dahlem, 228 AD2d 777. In Rouse, a police officer intentionally crossed into the opposite lane of travel and drove into the path of the fleeing motorcycle. The Third Department reversed a finding of summary judgment in favor of a municipality when it found a question of fact existed "[a]s to whether defendant deliberately drove his vehicle into the path of plaintiff's motorcycle in such a manner that a collision was likely, if not unavoidable, and thereby consciously disregarded a known serious risk of harm." (Rouse v Dahlem, supra, 228 AD2d, at 779). In King, a police vehicle pursued a motorcyclist at high speeds after hearing a bar employee tell that individual that he should not drive because he had been drinking too much. Although affirming summary judgment to the municipality, the Third Department noted that there was "[n]o evidence that [the officer] intentionally attempted to impact plaintiff's vehicle in an effort to stop it or in any way attempted to force plaintiff off the road [citation omitted])." (King v Village of Cobleskill, supra, 237 AD2d, at 692; emphases added). As such, in addition to a consideration of the factors previously set forth, it appears that evidence that an officer intentionally attempted to impact, stop or force a fleeing vehicle off the road is particularly informative in resolving the reckless disregard issue.

Examining the case at bar in light of all these factors we turn first to Trooper Miller's initial decision to pull over the Kitt vehicle. The nature of the offense witnessed by Trooper Miller was the vehicle crossing the centerline, driving below the speed limit, and entering a restricted area in a correctional facility. Courts have consistently found that when an officer observes erratic, dangerous, or out-of-control driving or even perceives a Vehicle and Traffic Law violation that an officer is "duty-bound to investigate". (Saarinen v Kerr, supra, 84 NY2d, at 502-503; Schieren v State of New York, supra, 281 AD2d, at 831). This case is no different. In this Court's view, the behavior noted by Trooper Miller was sufficient to justify an attempt to pull over the vehicle. Thereafter, Trooper Miller had every right to expect the vehicle to comply with his request to pull over and to pursue the fleeing vehicle once the vehicle ignored his direction to do so. (Simmen v State of New York, supra, 81 AD2d, at 401). As such, Trooper Miller's actions of attempting to pull over this vehicle and initiating the pursuit of the fleeing vehicle do not qualify as reckless disregard as a matter of law.

The Court will next examine the remaining phases of the chase, particularly the continuing nature of this pursuit; the failure to terminate the pursuit; and the multiple use of the moving roadblock. The State emphasizes that no State troop vehicle ever impacted the Pursued Vehicle, as well as the facts that the majority of this high-speed chase occurred on an open highway with low traffic volume in a rural area with clear weather and good visibility. The Court finds these allegations are sufficient to shift the burden to Claimants to come forward with evidentiary proof in admissible form to demonstrate the existence of material issues of fact.

Dealing first with the use of the moving roadblocks, Claimants contend that there are questions of fact surrounding who, if anyone, requested and/or authorized the Village Police Officer Adams to perform a second moving roadblock. Claimants' theory of liability rests on the allegation that Trooper Hodges was the source of this action. It does appear that there are differing accounts in this record regarding this sequence of events. For instance, Officer Adams specifically recalled being asked to perform this function by a State Trooper he believed was Trooper Hodges. (Exhibit H to Affirmation in Opposition, p 22). During his deposition Trooper Hodges conceded that it was "not impossible" that he had requested Officer Adams to execute a moving roadblock.[9] (Exhibit F to Affirmation in Opposition, p 19). Troopers Miller and Welytok were unable to recall any such radio transmissions in their depositions. If true, the Court finds no discernible difference between the Trooper taking this action himself and ordering someone else, here Police Officer Adams, to take such action. Consider, for instance, that Trooper Hodges had personally witnessed Trooper Welytok's prior unsuccessful attempt at a moving roadblock and knew and had time to consider that the Pursued Vehicle previously demonstrated an unwillingness to yield in the face of a moving roadblock without a significant reduction in speed.[10] Moreover, Claimants argue that such conduct was in violation of section 30B2(f)(3) of the State Police Field Manual which only permits the utilization of a moving roadblock with a supervisor's approval, unless extraordinary or life-threatening circumstances exist. It is unclear from the deposition testimony from then Captain James Hoffman and Sergeant Timothy Coughlin that such approval was requested and/or granted. (Exhibit G to Affirmation in Opposition). Nor is there any evidence based on what Trooper Miller knew at the time he commenced the initial pursuit, that either extraordinary or life-threatening circumstances existed as that term is used in the State Police Field Manual. (Exhibit I to Affirmation in Opposition, section 30B2[f][3]). Thus, this Court finds that there are questions of fact regarding whether a State Trooper, possibly Trooper Hodges, directed Officer Adams to execute a second moving roadblock;[11] whether supervisory approval was requested and/or granted; or, if not, whether these facts equate to extraordinary or life-threatening circumstances.

The Court should also address the State's contention that reckless disregard cannot be found in view of the fact that none of these troop cars ever impacted this Pursued Vehicle. As previously discussed in relation to the King and Rouse cases, reckless disregard was described as including not only actual contact, but also when there has been an attempt to stop or force a fleeing vehicle off the road. (See infra, p 11 ). Although there is nothing in the official definition of a moving roadblock which indicates that a trooper executing a moving roadblock is attempting to impact or force the vehicle off the road, it is clear that the intent of this maneuver is to stop the vehicle. As previously noted, by definition a moving roadblock states that pursuit vehicles are "[s]lowed to a stop along with the pursued vehicle". (Exhibit G to State's Memorandum of Law). Moreover, the radio transmission log itself describes Trooper Miller's request for "[a]dditional vehicles to try to get this vehicle stopped". (Exhibit J to Affirmation in Opposition, ¶ 7; emphasis added; see also, Exhibit A to Affirmation in Opposition, p 20). Here, the record reflects that the Pursued Vehicle made an "abrupt right-hand maneuver" to the far right as it attempted to get around Officer Adams' vehicle in the center of the highway which arguably would not have occurred if not for this maneuver. As such, under King and Rouse, does the implementation of a moving roadblock by its very nature include the high probability that the fleeing vehicle will be forced off the road because a police vehicle is intentionally placed in the path of the fleeing vehicle, particularly in light of the earlier failed attempt by Trooper Welytok? In this Court's view, there are additional issues regarding the goal of a moving roadblock and whether the use of such maneuver, under these specific factual circumstances, made it highly probable that the fleeing vehicle would be forced off the road, thereby rising to the level of reckless disregard.

Moreover, the Court finds that there are questions of fact relating to whether the Troopers violated other provisions of the State Police Field Manual. For instance, section 30B2(j)(1) prohibits the involvement of outside agencies absent supervisory authority, while section 30B2(e)(7) prohibits pursuits involving more than 2 vehicles without a supervisor's approval. From this record it does appear that an outside agency (the Village of Wayland Police Department) was involved as were more than 2 vehicles (Troop cars Miller, Hodges, Welytok and Police Officer Adams). Additionally, as previously indicated, whether a supervisor's approval was obtained is unclear from the deposition testimony from then Captain James Hoffman and Sergeant Timothy Coughlin. (Exhibit G to Affirmation in Opposition). Furthermore, the State Police Field Manual also mandates that the aforementioned factors be considered on a continuing and cumulative basis, a conclusion which is not readily apparent from this record.[12] Although violations of the State Police Field Manual, if any, are not alone dispositive on the issue of reckless disregard, such violations, if established at trial, will be instructive.

Claimants also emphasize the following factors: the extended 17 mile length of the chase; the 15 minute duration of the chase; Trooper Miller's awareness that the operator and passengers were "younger people"; and the minimal non-violent nature of the original offense. While these are legitimate factors for consideration pursuant to the State Police Field Manual, in this Court's view, the most intriguing facts in this case are that this chase lasted approximately 15 minutes and covered almost 17 miles with speeds consistently reaching 100 m.p.h. involving as many as three State troop cars before the final addition of the Village police vehicle. As such, particularly in relation to time and distance, it would appear that the troopers had sufficient time to consider their actions or, stated another way, these troopers had more than a "moment" to balance and weigh the relevant factors at hand. (Saarinen v Kerr, supra, 84 NY2d, at 502).

In sum, in view of the foregoing, this Court cannot state as a matter of law that, the continuing nature of this pursuit; the failure to terminate the pursuit earlier; and the instruction, if any, to an outside agency to attempt a second moving roadblock after a failed first attempt; the possible lack of extraordinary or life-threatening circumstances and possible lack of supervisory approval do not rise to the level of reckless disregard.

The State also raises another argument, namely that the State's actions were not a proximate cause of the accident rather it was the dangerous driving of Adam Kitt, the driver of the Pursued Vehicle. In view of the foregoing discussion, particularly in relation to the moving roadblocks, this Court finds a question of fact as to whether the conduct of the Troopers while not directly impacting the fleeing vehicle nonetheless certainly contributed to the happening of the accident. (Mitchell v State of New York, supra, 108 AD2d, at 1035; Rightmyer v State of New York, supra, 108 AD2d, at 1048; Edwards v State of New York, Ct Cl., June 27, 2000, Midey, J., Claim No. 96817). The Court has considered the State's remaining arguments and finds them to be without merit.

Accordingly, in light of the foregoing, and it is ORDERED that the State's motion for summary judgment, Motion No. M-63714, is DENIED; and the State's Verified Answer is deemed amended to assert Vehicle and Traffic Law 1104 (e) as an affirmative defense.

November 13, 2001
Binghamton, New York

Judge of the Court of Claims

[1]The Court will refer to this officer as a Village police officer, although it is not entirely clear whether he was employed by the Village of Wayland or Town of Wayland.
[2]The terms seem to be used interchangeably. For sake of continuity the Court will use the term "moving roadblock" since that is the formal designation in the State Police Field Manual.
[3]Officer Adams conceded that he blocked traffic from entering Route 390 on his own initiative upon overhearing radio transmissions. The dispute discussed herein centers on whether Officer Adams' subsequent actions were requested by and authorized by State Troopers.
[4]Whether the use of this phrase was meant to be the equivalent of a request for a moving roadblock is a question not raised by either party.
[5]The State did not plead this defense as an affirmative defense as required. (Culhane v State of New York, 180 Misc2d 61). Nevertheless, leave to amend is freely given when Claimant does not assert surprise or prejudice. Claimant did not raise this issue in opposition and responded to the motion on the merits. As such, the State's Verified Answer will be deemed amended to include reliance on Vehicle and Traffic Law 1104.
[6]So long as the guideline does not impose a standard higher than the applicable standard of care. (Brkani v City of New York, 211 AD2d 740).
[7](Saarinen v Kerr, supra, 84 NY2d 494 [insufficient showing to establish even a question of fact whether chase that was terminated after no more than one or two minutes at 60 m.p.h. in 35 m.p.h. zone through empty streets following vehicle that squealed tires, fish-tailed and ran a stop sign was reckless disregard; Szczerbiak v Pilat, supra, 90 NY2d 553 [issue of liability not presented to jury on whether officer's conduct of driving 800 feet before engaging emergency lights and siren and then glancing down to turn them on rose to level of reckless disregard]; Dibble v Town of Rotterdam, 234 AD2d 733, lv denied 89 NY2d 811 [officer's conduct of speeding and closely following vehicle that was spinning its wheels and weaving did not rise to level of reckless disregard as a matter of law]; Martin v Miller, 255 AD2d 816 [reversal of denial of summary judgment to municipality; pursuit lasting only a matter of seconds in which speeds did not exceed 40 m.p.h. not reckless disregard as a matter of law]; Mitchell v State of New York, 108 AD2d 1033, lv denied 64 NY2d 611, 1128 [claim dismissed after trial against trooper who pursued vehicle between speeds of 70 to 100 m.p.h. and turned off emergency lights and siren in contravention of department regulations did not rise to level of reckless disregard]; Rightmyer v State of New York, 108 AD2d 1047 [trooper who pursued vehicle with expired inspection sticker and ran stop sign did not rise to level of reckless disregard as a matter of law]; Powell v City of Mount Vernon, 228 AD2d 572 [reversal of trial court's determination that questions of fact existed; high speed does not in and of itself constitute reckless disregard].
[8](Simmen v State of New York, 81 AD2d 398, affd 55 NY2d 924 [judgment of liability reversed against officer who accelerated to 110 m.p.h. and did not obtain the license number of fleeing vehicle]; Schieren v State of New York, 281 AD2d 828 [pursuit of dirt bike lasting less than minute covering less than one mile at low speed not reckless disregard]; Mullane v City of Amsterdam, 212 AD2d 848 [summary judgment to City upheld; officer pursued vehicles at 50 m.p.h. in a 30 m.p.h. zone that he saw screech tires, speeding, and crossing centerline]; and McCullen v County of Rensselaer, 210 AD2d 779 [Third Department reversed denial of summary judgment; officer did not exceed 45 m.p.h. in chase lasting less than a minute].
[9]By way of further comparison, Trooper Hodges' Memorandum dated November 2, 1996 states the following: "[i]mmediately prior to exit three I monitored a radio transmission stating something to the effect of Bob, do you want me to get in front of them. Believing this transmission to be directed to me I replied something to the effect that we had tried but they have just gone around us. At this time I was not aware of who made the transmission, however I noted that it came over the police radio." (Exhibit D to Affirmation in Opposition, p 2).
[10] By way of comparison, in King, although the fleeing vehicle drove around one roadblock, a second roadblock was not attempted.
[11]The Court does note that this issue may well come down to an assessment of credibility at trial since this information appears to be within the knowledge of the Troopers. (Walsh v Town of Cheektowaga, 237 AD2d 947, lv denied 90 NY2d 889).
[12]Also, although not raised by either party, the Court also notes that the State Police Field Manual dictates that a pursuit should be terminated when "division aircraft is in position to monitor movement and assume control of pursuit". (Exhibit G to State's Memorandum of Law, section 30B[f][2]). The radio log shows that State aircraft was en route less than 10 minutes after requested to take photographs of the scene after the fact, leading to the question of whether division aircraft was in a position to monitor this vehicle in the first instance.