This claim for personal injuries arises from a two-vehicle collision which
occurred at the intersection of State Route 22 (hereinafter Rt. 22) and Broadway
in Amenia, New York on June 6, 1997. The trial was bifurcated and this decision
deals only with the issue of liability.
The evidence at trial established that at about 4:00 p.m. on June 6, 1997 the
was driving a Dodge minivan northbound on Rt. 22 approaching the area in which
the accident occurred. As he approached the intersection of Rt. 22 and
Broadway, he activated his left turn signal and began to make a left turn across
the southbound lane of Rt. 22 to enter
. At that time, a marked New York
State Police vehicle with its emergency lights and siren on, also traveling
northbound, was passing claimant's minivan on the left, in the southbound lane
of Rt. 22
. The inevitable collision
Trooper Robert Murphy was the driver of the police vehicle involved in the
collision and Trooper David Denzel was sitting in the front passenger seat at
the time of the collision. Each Trooper testified at a
that at the time of the accident they were responding to a Dutchess County
Sheriff's radio dispatch for police assistance at a vehicular accident involving
personal injuries at the intersection of Rts. 22, 44 and 343 in Amenia, which is
located approximately one-half mile north of the subject
Trooper Murphy testified that on the day of the accident he was assigned to the
Dover Plains substation, had worked there for almost four years and was very
familiar with Rt. 22. He stated that the substation is also on Rt. 22, about
six miles south of Broadway in Amenia. He testified that on June 6, 1997 his
shift started at 3:00 p.m. and at about 3:30 p.m. he and Trooper Denzel left the
substation to pick up a State Police vehicle that was being repaired at a shop
approximately three miles north of the substation.
Trooper Murphy stated that at approximately 4:00 p.m. a radio transmission was
received from the Dutchess County Sheriff's Department advising that there was a
three-car personal injury accident at the intersection of Rts. 22 and 44 in
Amenia. The witness stated he activated the vehicle's emergency lights and
siren and Trooper Denzel acknowledged receipt of the transmission saying that he
and Murphy would respond to the scene. The transmission was received at about
the time the Sheriff's Department changes shifts and he thought there would be
few, if any, Deputies on the road. He further stated that the radio
transmission did not indicate the time of that accident. He also testified that
the repair shop is located about three miles south of Rt. 44. The Troopers
responded at speeds up to 75 or 80 MPH but decelerated the vehicle when
appropriate. Trooper Murphy stated that at the time of the collision with
claimant's vehicle he was traveling about 45 MPH.
Trooper Murphy testified the weather conditions were dry and clear and the
traffic on the road was medium. He stated he passed several vehicles as he
drove north. When he reached the area of Lake Amenia Road, he saw claimant's
vehicle somewhere south of the bridge (see Exhibit 28, DOT Photo Log
(Photographs 90-93). There was one car between the police vehicle and the
minivan. Trooper Murphy testified that at that time his speed was between 50
and 55 MPH.
Trooper Murphy stated he passed the middle
somewhere in the vicinity of the bridge. He also had been watching the minivan
and did not observe it taking any particular action. When passing the Adhers'
vehicle he could see the minivan and there was no traffic in the southbound
lane. He passed Adhers at approximately 45 MPH and although the minivan was
slowing, it did not have the brake lights or any signal lights
Trooper Murphy testified that as he passed Adhers he had not yet decided to
pass the minivan and traveled straddling the north and southbound lanes when it
appeared the van was slowing. As there was no traffic in the southbound lane,
he decided to pass the minivan. He stated that the speed of the minivan
decreased further and still had no directional signals on. However, as the
front bumper of the police vehicle reached the rear wheel of the minivan, the
minivan began to veer left. Trooper Murphy also veered left and began to slow
down. He stated that the minivan continued to veer left as did the police
vehicle, at which point the police vehicle was at the western edge of the
roadway and the vehicles collided just south of the beginning of the
intersection of Rt. 22 and Broadway in the middle of the southbound lane of Rt.
22. The passenger side of the police car and the driver's side of the minivan
collided but the vehicles were not connected. Both vehicles continued in a
northwesterly direction and came to rest in the grass and reeds off the western
(left) side of Rt. 22.
Trooper Murphy stated that the police vehicle hit a milepost sign and a plaza
sign. The milepost sign was severed and penetrated the windshield of the police
vehicle. From the point of impact, the police vehicle traveled about 190 feet
(see Exhibit 5).
At the time of the deposition, Trooper Murphy stated he thought the accident
with Mr. Parrinello happened in the vicinity of 4:10 p.m but that the time was
based upon what was written in the State Police accident report.
Before exiting the vehicle Trooper Murphy checked on Trooper Denzel and at that
point, they heard a transmission from a Deputy Sheriff stating that he had
arrived at the scene of the Rts. 22 and 44 accident. Trooper Murphy advised the
Deputy that he would not be responding because he had been involved in a motor
vehicle accident. Trooper Murphy thereafter checked on Mr. Parrinello and in
the discussion, Mr. Parrinello stated he had not been paying attention and had
the radio on loud.
Trooper Murphy's testimony was consistent with the information contained in the
memorandum dated June 7, 1997 that he sent to the Troop K Troop Commander
Trooper Denzel's testimony regarding the sequence of events was, for the most
part, consistent with the testimony of Trooper Murphy.
Trooper Denzel could not recall the time the two Troopers left the substation
but he estimated it to be somewhere between 3:00 and 4:00 p.m. Trooper Denzel
did not recall the time of the accident, but estimated it to be around 4:00 p.m.
Trooper Denzel stated that as he and Trooper Murphy were driving to the repair
shop, they heard the transmission from the Sheriff's Department regarding a
personal injury accident at the intersection of Rts. 22, 44 and 343. They
responded because it was around the time of the shift change at the Sheriff's
Trooper Denzel further testified that Trooper Murphy activated the lights and
siren. He could not recall whether he or Murphy reported the decision to
respond to the accident scene. Also, as they proceeded north they passed a
number of northbound vehicles (Exhibit 2, Page 55). During this time, Trooper
Denzel did not hear any other transmission regarding that accident.
Trooper Denzel testified the speed limit in the area of the accident is 55 MPH
until it changes to 35 MPH some distance north of the intersection of Rt. 22 and
Broadway. At some point south of the strip mall, he remembered seeing the two
northbound vehicles but could not remember the exact location (Exhibit 2, Pages
Trooper Denzel testified they passed the first vehicle (Adhers' vehicle)
without incident. After passing the first vehicle they were about three car
lengths behind claimant's minivan. As they approached the minivan, it did not
have any rear lights, brake lights or turn signal operating. At that point he
could still hear the police vehicle siren (Exhibit 2, Page 72). The police
vehicle slowed by about 5 to 10 MPH. When the minivan did not yield to the
police vehicle, Trooper Murphy pulled into the southbound lane to pass it. The
two vehicles were traveling side-by-side but before completing the pass, the
minivan turned to the left and the two vehicles collided. The two vehicles were
stuck together for a short distance and proceeded northbound until they came to
Trooper Denzel's testimony was consistent with his June 7, 1997 memorandum to
the Troop K Troop Commander regarding the instant accident (see Exhibit
Claimant, Francis Parrinello, testified at trial. He stated that on the day of
the accident he had been driving from New Jersey to his home in Amenia. He
stated that he left New Jersey at approximately 2:00 p.m and that during his
trip home, up until the accident, he listened to the radio and cassette tapes.
He described the volume of the music to be moderate - loud enough for him to
hear the music even though several of the minivan's windows were open. He also
testified that he was able to hear his pager inside the vehicle over the radio.
Mr. Parrinello described the traffic on Rt. 22 as moderate, but as he approached
Amenia there was very little traffic on the road.
Mr. Parrinello testified that he activated his left-turn signal when he was
north of Lake Amenia Road and south of the bridge. He also testified that as he
proceeded toward the bridge he did not see any traffic ahead. After he crossed
the bridge, he started to brake in anticipation of his turn onto Broadway. He
testified that he waited until the double yellow line ended at the intersection
of Rt. 22 and Broadway to make the turn. He denied cutting across the yellow
line. Claimant testified that he slowed in anticipation of the turn onto
Broadway but did not feel any need to stop because the only traffic heading
southbound was several hundred yards to the north and posed no danger. He also
testified that his vehicle was fully engaged in the turn, entirely in the
southbound lane when he heard a police siren, which he described as a single
blip sound, at the exact moment of the collision.
Mr. Parrinello testified that the front of the police vehicle hit his vehicle
pushing his minivan 180 degrees around to face east. However, despite being
pushed and spun to the right, he testified that his vehicle continued in a north
by northwest direction, which he described as "surfing sideways", and that his
vehicle continued in that fashion onto the grassy area. Then he testified that
his vehicle came back into a position facing north and it continued straight in
a north by northwest direction until it came to rest on the west side of Rt. 22
in a grassy area beyond the intersection of Rt. 22 and Broadway. The witness
also stated that after the collision he saw the emergency lights of the police
Mr. Parrinello testified that immediately after the accident he spoke with one
of the Troopers involved in the accident and that the Trooper said he did not
see the turn signal on the minivan because the sun was in his eyes. Mr.
Parrinello testified that as he was driving north on Rt. 22, there was no glare
from the sun.
Mr. Parrinello testified he stayed in the vehicle until the rescue personnel
took him out and brought him to the hospital. At the hospital, State Police
approached him about signing some paperwork, which he refused to
On cross-examination, Mr. Parrinello stated that he was focused on the traffic
ahead of him and not on the traffic behind him.
testified that on June 6, 1997 she was traveling north on Rt. 22 in the Town of
Amenia on her way home from work. She stated that she got off from work at 4:00
p.m. and she had driven about ten minutes when she witnessed the instant
accident at the intersection of Rt. 22 and Broadway. The witness stated that as
she got to the area of the ice cream stand, south of Broadway (see Exhibit 28,
Photo Log, Photographs 93 and 94) she was traveling about 40 to 45 MPH when she
heard a siren. Mrs. Adhers stated she turned her head to the left and saw a
State Police vehicle parallel to her, going past her, heading north in the
southbound lane. She was unable to estimate the speed of the police
Mrs. Adhers testified that claimant's minivan was about three car lengths in
front of her as the police vehicle went past. The minivan was in the northbound
lane of Rt. 22 approaching the intersection of Broadway. The witness stated
that she saw a signal light activated on the minivan after the police vehicle
had already passed the back of the minivan. It was her belief that the driver
of the police vehicle could not see the minivan's turn signal. At that point,
she pulled her car off the road and stopped because she knew there was going to
be a collision and did not want to be involved in it.
Mrs. Adhers could not recall if the police vehicle's emergency lights were on
but she remembered hearing the siren. She said that the police vehicle and the
minivan were about even when she saw the minivan's tires turn to the left and
hit the police vehicle. She also saw the police vehicle move to the left but
was not sure if this was an evasive move or if it was after the first collision.
She stated she thinks the two vehicles collided three separate times as they
continued up Rt. 22, across the intersection of Broadway and eventually come to
a rest in a grassy area on the west of Rt. 22.
was called as a witness by claimant. On June 6, 1997, at the time of the
subject accident, Mrs. Whitely was at the ice cream stand (known as Fudgy's) in
the strip mall off Rt. 22 just south of the intersection with
The witness stated that she heard a police siren going from south to north.
She does not recall seeing the police vehicle but the siren was continuous and
steady. She stated that she then heard a crash and saw that a State Police
vehicle and a white minivan had collided. She did not observe any of the events
prior to the collision.
Claimants assert that no emergency situation existed which would provide the
defendant with qualified immunity under Vehicle and Traffic Law (hereinafter
VTL) § 1104. Immunity is not available where the driver was not responding
to an emergency and in such circumstances liability may be predicated on the
principles of ordinary negligence (see,
Mattera v Avis Rent A Car Sys.
, 245 AD2d 274) upon which claimants
clearly prevail in this matter. Thus, claimants assert that VTL § 1104
does not apply and Trooper Murphy should be held to an ordinary negligence
standard. In the alternative, claimants assert that even if VTL § 1104
applies, the Trooper's actions were reckless and without due regard for the
safety of others.
VTL § 1104 provides qualified immunity from civil liability to the driver
of an authorized emergency vehicle when he or she is operating the vehicle in an
emergency situation. However, this privilege does 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" (VTL § 1104 [e]).
The term "emergency operation" is defined by VTL § 114-b to include:
"[t]he operation...of an authorized emergency vehicle, when such vehicle is
engaged in...responding to, or working or assisting at the scene of an
accident...police call...or other emergency..."
Additionally, VTL § 101 provides that every police vehicle is an
"authorized emergency vehicle". Furthermore, the driver of an "authorized
emergency vehicle" is exempt from certain "rules of the road" under VTL §
Criscione v City of New York
, 97 NY2d 152, 156; Riley v County of
, 95 NY2d 455, 462).
Claimants spent a great deal of time at trial attempting to establish that the
accident at the intersection of Rts. 22, 44 and 343, to which the Troopers claim
to have been responding at the time of this accident, was a minor property
damage accident and had been completely cleared prior to the subject collision.
Thus, claimants assert that no legitimate emergency situation existed at the
time of the subject accident and Trooper Murphy's actions as the driver of the
State Police vehicle are not protected by VTL § 1104.
To establish that the accident at Rts. 22, 44 and 343 had been cleared prior to
the subject accident, claimants offered a time-line of events beginning at the
time of the first accident and extending to the time of the subject accident.
Claimants contend that the subject accident occurred between 4:18 and 4:20 p.m.
and not at 4:10 p.m. as asserted by the State Police.
Dutchess County Deputy Sheriff Thomas Cuddeback was called as a witness by
claimants. He testified that he has been employed as a Dutchess County Deputy
Sheriff for 16 years and has been assigned to the Amenia substation for 10 to 12
years. He stated that his shift began at 4:00 p.m. on June 6, 1997. He could
not recall what time he arrived at the substation on that day but estimated it
was at about 3:30 p.m. He stated that at some point after his shift started he
received a dispatch from the Sheriff's Department Dispatcher to respond to the
scene of a personal injury automobile accident at the intersection of Rts 22 and
44 in Amenia
. He arrived at the scene and immediately notified the Sheriff's Department of
his arrival but he could not recall how long it took him to arrive or the time
he arrived there. At the time he arrived he believes Amenia Fire personnel were
already there. The witness stated that while he was on his way from the
substation to the Four Brothers accident scene he spoke to an officer in a State
Police vehicle. He does not remember if he contacted the Trooper or the Trooper
contacted him and he does not recall the substance of the conversation or who
the Trooper was. After arriving at the Four Brothers accident scene he advised
the Troopers that he had arrived at the scene and was investigating. The
Trooper told him that he was involved in his own accident and would not be
responding to the Rt. 44 accident. The witness did not know what time this
radio transmission was made.
Deputy Cuddeback referred to Exhibit 31, the Dutchess County Sheriff's
Department Incident Report of the Four Brothers accident, which indicates that
the accident occurred at 3:45 p.m. (see also Exhibit 32, MV 104A [Accident
Report]) and that it was reported to the Sheriff's Department at 3:50 p.m. by
telephone. According to the AEGIS Public Safety System Incident Report (Exhibit
62), the Four Brothers accident was reported at 3:50 p.m. The witness was
dispatched to the scene at 4:16:54 p.m. and he arrived at the scene at 4:17:27
p.m. or 33 seconds after he was dispatched.
Claimants assert that Exhibit 62 is unreliable based upon (1) the AEGIS Public
Safety System record of a Dutchess County 911 Dispatch establishing that the 911
Dispatcher received a call at 3:48:48 p.m. regarding the Four Brothers Accident
and that the Amenia Fire Department was dispatched to the scene at 3:49:14 p.m.
(see Exhibit 60) and (2) the testimony of Amenia Fire Department Chief John
Macura and Captain Larry Murphy that Deputy Cuddeback was at the scene of the
Four Brothers accident before 4:00 p.m.
Both Chief Macura and Captain Murphy were called by claimants. They each
testified that they received pages at 3:48 p.m. on June 6, 1997 from the
Dutchess County Emergency Response System (911 Dispatcher) regarding an
automobile accident at Rts. 22 and 44. Chief Macura testified that he arrived
at the Four Brothers parking lot approximately two minutes later and Captain
Murphy said it took him about six minutes to arrive at the scene. Chief Macura
stated when he arrived at the scene there were no police vehicles present and
that Deputy Cuddeback arrived at the scene at approximately 4:00 p.m. Captain
Murphy's testimony was that he arrived at the scene at approximately 3:55 p.m.
and that Deputy Cuddeback was present when he arrived.
Given the discrepancies in both the testimony and the documentary evidence, the
Court is unable to establish the exact time of either accident. However, the
exact minute the subject accident occurred is not dispositive of the issue of
whether the State Police were properly responding to "an emergency situation" at
the Four Brothers accident
On redirect, Chief Macura testified that he informed Deputy Cuddeback that he
(the Fire Chief) was leaving the scene of the Four Brothers accident and the
scene was cleared about one minute
he heard a siren and a crash south of his location. About two
minutes later he received a 911 dispatch to respond to the scene of the subject
accident (see Exhibit 61). Based upon this testimony the State Police had every
right to believe their presence was still necessary at the Four Brothers
accident scene regardless of the exact time that the subject accident
No testimony was offered by
claimant to refute this
Claimants assert that the deposition testimony of Troopers Murphy and Denzel is
inconsistent in certain respects, such as to the speed and position of their
vehicle when passing Mrs. Adhers' vehicle and that the Court should draw a
negative inference based upon the State's failure to present a direct case and
offer the testimony of these Troopers. However, the Court notes that the burden
of proof is upon claimants and the State is not required to present a direct
case if its counsel believes claimant has failed to sustain his/her burden of
proof. The Court will not draw any negative inference based upon the State's
decision not to put forward a direct case especially where their deposition
testimony was already admitted. Presumably, claimant could have subpoenaed the
Troopers and requested to treat them as adverse witnesses for purposes of
The Court has weighed the testimony of the witnesses and has no basis to
discount the testimony of Troopers Murphy and Denzel that they heard a radio
transmission from the Dutchess County Sheriff's Department regarding a personal
injury automobile accident and that the Troopers indicated they would respond to
the scene. The Court accepts Trooper Denzel's statement (contained in Exhibit
7) that they acknowledged receipt of the transmission and indicated they would
respond. Otherwise, there would have been no reason for Deputy Cuddeback to
"call them off" upon his arrival at the Four Brothers scene.
Pursuant to VTL § 1104 (c), all authorized emergency vehicles,
except police vehicles
, must be operating a siren and at least one
lighted red light for the exemption of the statute to apply. Consequently, the
exception applies to all police vehicles involved in an emergency operation even
if the officer does not employ emergency red lights and the siren (see,
Cerruti v State of New York
, Claim No. 90028, filed August 20, 1997,
McNamara, J.). The incident here involved a police vehicle responding to the
scene of an accident (see VTL § 114-b) which, according to the unrefuted
testimony of Chief Macura and Deputy Cuddeback, was not cleared until after the
instant accident. Therefore, this Court must find that the State Police vehicle
was involved in an emergency operation and the "reckless disregard" standard
applies (see, Criscione v City of New York
, 97 NY2d 152 at 158;
Szczerbiak v Pilat
, 90 NY2d 553 at 556-557; Saarinen v Kerr
NY2d 494 at 500-501).
As a matter of legislative policy, the "reckless disregard" standard is
extremely difficult for any claimant to attain. It has been defined as "the
conscious or intentional doing or 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
" (Szczerbiak v
, 90 NY2d 553, supra
at 557 [emphasis supplied]; see also
Saarinen v Kerr
, 84 NY2d 494 supra
There is no proof in the evidence adduced at trial demonstrating that Trooper
Murphy's operation of his police vehicle was an intentional act of an
unreasonable character done with conscious indifference to the outcome.
According to VTL § 1144 (a), claimant was required to yield the
right-of-way and, among other precautions, stay clear of the intersection upon
the approach of an authorized emergency vehicle (
Tobacco v North Babylon Fire Dept.
, 251 AD2d 398). For whatever reason,
claimant failed to do so. Trooper Murphy stated that as his vehicle approached
claimant's minivan, the minivan slowed down, he did not see any turn signal on
the van so he pulled into the southbound lane of Rt. 22 to pass it. According
to Mrs. Adhers, the reason Trooper Murphy did not see the turn signal on
claimant's minivan was because Mr. Parrinello engaged the signal after the
police vehicle was past the back of the minivan. The Court finds Mrs. Adhers'
disinterested testimony on this point more persuasive than claimant's testimony
that he activated his left turn signal south of the bridge. As a result, I can
find no evidence that Trooper Murphy knew, or should have known, the intentions
Under the facts presented at trial, there is no rational basis upon which to
conclude that Trooper Murphy operated his vehicle with the type of knowing
disregard required to establish defendant's liability under VTL § 1104 (e).
Absent such showing, the claim must be, and is, hereby dismissed. In light of
the Court's decision, the State's counterclaim is dismissed as moot. All motions
made a trial, upon which the Court reserved decision, are now denied. The Chief
Clerk is directed to enter judgment accordingly.