Filed Papers: Interim Decision and Order dated November 19, 2003 and the Papers
Upon the foregoing papers, this motion is denied.
In an interim decision and order dated November 19, 2003, I addressed the
application for permission to file a late claim and directed the parties to
serve and file additional submissions with respect to the issues regarding (1)
the ownership of the bus; (2) whether the bus was an authorized emergency
vehicle; and, if so, (3) whether any of the conduct attributable to the
Defendant is sufficient to allegedly meet the standard of recklessness.
Claimants did utilize a Notice to Admit upon the defendants in the companion
Supreme Court proceeding. In response, Progressive Transportation Services,
Inc., admitted that it was the owner of the subject vehicle. Similarly, the
defendants there, in response to Claimants' demands, responded that the vehicle
in question was under a lease to the New York Department of Correctional
Services (DOCS), in use for the purpose of transporting prison inmates and that
DOCS provided their own drivers and garaged the vehicle on their property
(Exhibit D to the moving papers). While counsel had agreed to execute a
confidentiality agreement at the time of the filing of the supplemental motion
papers currently before me, neither the agreement nor the lease were available
to Claimants. Claimants profess a degree of ignorance with respect to the terms
of the said lease agreement.
Since one of the defendants in the companion action has now admitted that it is
the owner of the vehicle (see Exhibits A and B to Claimants'
supplemental affirmation), and since owners under New York State Vehicle and
Traffic Law §388 may be held vicariously liable for injuries resulting from
the negligent use or operation of their vehicle, regardless of whether
Correction Officer Sindoni is a party in that action, the alternative remedy in
Supreme Court appears to be complete. The lack of information respecting the
lease agreement does not affect the vicarious liability of the owner of the
vehicle. Accordingly, I find that Claimants have a full and complete available
remedy in the pending action in Supreme Court.
The parties were also directed to address the effect of Vehicle and Traffic Law
§1104 with respect to whether the vehicle in which Claimant was riding is
an "authorized emergency vehicle," including whether the bus was a "police
vehicle" (Vehicle and Traffic Law §132-a) which was involved in an
"emergency operation" (Vehicle and Traffic Law §114-b). Claimants still
demur because, inter alia, they are unaware whether the subject bus had
various audible signals (Vehicle and Traffic Law §1104[c]), and more
specifically rely upon the language of Vehicle and Traffic Law §132-a,
implying that since the vehicle was not owned by the State of New York but was
leased, it could not be considered a "police vehicle" or an "authorized
emergency vehicle" (Vehicle and Traffic Law §1104[c]). Claimants make
much of the unknown aspects of the lease agreement, but I fail to see the
relevance of the lease agreement vis-a-vis the use of the subject bus for
the purpose it was being utilized on the day of the accident.
On the other hand, I am persuaded by Defendant's arguments here showing that
Correction Officer Sindoni, as a correction officer, would be deemed a "peace
officer" (Criminal Procedure Law §2.10 ), and thus a "police officer"
(Vehicle and Traffic Law §132). Hence the bus would be deemed a "police
vehicle" (Vehicle and Traffic Law §132-a), if it were owned by the State.
To the extent that Claimants argue that the bus, as a leased vehicle, was not
owned by the State, and thus could not be considered a "police vehicle", I find
that argument specious.
Defendant's point in this regard is well taken, arguing that a leased vehicle
regularly used in the business of the lessee
should be treated no differently for the purposes of the statute than one that
is owned, or the legislative purpose of the statute would be defeated. I adopt
the argument that the lessee of the vehicle is, in essence the "beneficial
owner" of the vehicle, for the limited purpose here of determining the standard
of care to be applied to the driver, particularly when Vehicle and Traffic Law
§1104(e) only concerns the driver of authorized emergency vehicles without
considering the ownership of the vehicle in question. It is the operation of
the vehicle and the standard of care to which the driver will be held
accountable, which are dispositive, not the issue of ownership.
Based upon the above, for the purposes of this motion, I find that the subject
bus was an authorized emergency vehicle, and that Correction Officer Sindoni
should be held accountable pursuant to the standards established in Vehicle and
Traffic Law §1104 (e).
I noted in the interim order that "[t]he resolution of that question might
relegate this matter to one where liability may not be imposed unless it is
alleged and established that the operator of the vehicle acted with
‘reckless disregard for the safety of others' (Vehicle and Traffic Law
§1104)." Claimants, assuming arguendo that the recklessness
standard applied, now argue that the question of whether a driver acted with
reckless disregard may be put before the jury, citing Szczerbiak v Pilat
(90 NY2d 553).
What I have before me today is the Claimants' application for me to exercise my
discretion on their behalf pursuant to Court of Claims Act §10(6), and
their suggestion that the language from the police report permits the conclusion
that the driver "knowingly crossed a double solid yellow line in violation of V
& T Law §§ 1124, 1126 while passing two vehicles... with a bus
full of unbelted and shackled passengers," and as such is evidence of "reckless
disregard" sufficient to support allegations of recklessness.
The Defendant notes that the same police report states that the driver never
saw a turn signal, and observes that recklessness has been defined by the Court
of Appeals as requiring "evidence 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), and showing more than a momentary
lapse of judgment.
In making an application seeking my discretion, Claimants are generally held to
a higher standard than would otherwise be the case had they timely filed a claim
in the first place, and, as I noted in my interim decision, one seeking
permission to file a late claim has the heavier burden of demonstrating that the
proposed claim appears to be meritorious (see Nyberg v State of
New York, 154 Misc 2d 199). The terms "recklessness" and "reckless
disregard" are recited in the proposed claim, but the alleged actions of the
driver described in the police report, while perhaps negligent, are inadequate
to lead me to believe that a valid cause of action sounding in recklessness
exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1,
Given the existence of another complete and total remedy in Supreme Court,
where the owner of the vehicle may not have the benefit of the Vehicle and
Traffic Law §1104(e) defenses available to the State here, and upon
considering all the statutory factors and the papers before me, and in
conjunction with my interim decision and order, I decline to exercise my
discretion on Claimants' behalf. The motion is denied.