New York State Court of Claims

New York State Court of Claims

HECKSTALL v. THE STATE OF NEW YORK, #2004-013-021, , Motion No. M-66939


Case Information

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:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
April 26, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


On August 20, 2003, the following papers were read on Claimants' motion for per-mission to file a late claim pursuant to Court of Claims Act §10(6):
Supplemental Affirmation and Exhibits Annexed

Answering Affirmation

Filed Papers: Interim Decision and Order dated November 19, 2003 and the Papers Recited Therein

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 [25]), 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[1] 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, 11).

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.

April 26, 2004
Rochester, New York

Judge of the Court of Claims

  1. [1]Defendant used the term "lessor," but clearly meant lessee.