New York State Court of Claims

New York State Court of Claims

ALLSTATE v. NEW YORK STATE THRUWAY AUTHORITY, #2007-029-027, Claim No. 110467, Motion Nos. M-73137, M-73175


State’s motion for summary judgment granted. State Police vehicle was not being driven with reckless disregard for the safety of other motorists.

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):
M-73137, M-73175
Cross-motion number(s):

Claimant’s attorney:
CARL S. YOUNG & ASSOCIATESBy: John J. Magarian, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: John M. Healey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 3, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises out of a March 11, 2004 automobile accident involving claimant’s subrogor and a vehicle owned by defendant and operated by Jeffrey Rivera, a New York State Trooper, allegedly resulting in property damages of $7,815.00 to the insured vehicle. Disclosure has been completed, claimant filed a note of issue on February 15, 2007 and both parties now move for summary judgment.

There is no dispute as to the facts of the subject accident. According to the police accident report:
“Veh. # 1 [Rivera’s State Police vehicle] making left turn on to Fifth Ave. in a south direction, lost control and struck Veh. # 2 [claimant’s insured vehicle], which was on Fifth Ave. in a north direction. Veh. # 2 had stopped in lane when operator observed Veh. # 1 lose control. Veh. # 1 crossed over double yellow lines and struck Veh. # 2 in driver’s door.” (Defendant’s Notice of Motion, Ex. C).
In his affidavit in support of defendant’s motion for summary judgment, Trooper Rivera advises that he was on duty in his assigned barracks in New Rochelle when he received an emergency call involving a high-speed State Police pursuit on the Hutchinson River Parkway. He entered his vehicle, activated his emergency lights and siren, and headed towards the parkway. He reached Fifth Avenue, checked and determined it was safe to enter, accelerated and began to turn left onto Fifth Avenue. At this point, the rear wheels of his vehicle “spun out on loose pavement causing me to lose control, cross the double yellow lines and strike claimant’s vehicle” (id., Ex. D).

Defendant’s motion for summary judgment is based on Vehicle and Traffic Law § 1104, which allows the drivers of authorized emergency vehicles to disregard the normally-applicable rules of the road governing the movement of vehicles, provided the driver acts “with due regard for the safety of all persons” and specifically providing that the special rules do not insulate the driver “from the consequences of his reckless disregard for the safety of others” (VTL § 1104[e]). Based on the “recognition that the duties of police officers and other emergency personnel often bring them into conflict with the rules and laws that are intended to regulate citizens’ daily conduct and that, consequently, they should be afforded a qualified privilege to disregard those laws where necessary to carry out their important responsibilities”, the statute in effect substitutes the “reckless disregard” standard for the otherwise-applicable ordinary negligence analysis (Saarinen v Kerr, 84 NY2d 494, 502 [1994]).

The Saarinen court defined reckless disregard as knowingly committing “ ‘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’ . . . with conscious indifference to the outcome” (id. at 501 quoting Prosser and Keaton, Torts § 34, at 213 [5th ed]; see also Salzano v Korba, 296 AD2d 393 [2d Dept 2002]).

Given the absence of any material fact in dispute, defendant’s burden on this motion for summary judgment was to make a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). In view of the applicable law, defendant has met its initial burden. Thus, the burden shifts to claimant to demonstrate the existence of material issues of fact requiring a trial (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Rather than even alluding to the relevant facts of this case, claimant instead argues generally that the facts of some cases involving collisions with emergency vehicles may raise factual issues precluding summary judgment, a contention as inarguable (see e.g. Badalamenti v City of New York, 30 AD3d 452 [2006]) as it is irrelevant. In the case at bar, claimant does not dispute that Rivera was driving a State Police vehicle, responding to an emergency call with his lights and siren activated when the subject incident occurred. Instead, claimant argues that a prima facie case of negligence, indeed a case of negligence as a matter of law, has been established, per se, by proof that Rivera’s vehicle crossed double yellow lines and struck its insured vehicle. Claimant’s papers in support of its motion for summary judgment totally ignore the legislatively prescribed standard of care discussed, supra, and proceed as if this is an ordinary negligence case. It isn’t. Negligence is irrelevant to the question of whether Rivera acted with conscious and reckless disregard to an obvious risk of harm by driving too fast for the applicable road conditions, causing his vehicle to go out of control and contact the insured vehicle, causing property damage, but not, to the court’s knowledge, personal injury.

The court finds that defendant has established that the reckless disregard standard is applicable to this claim, that there is absolutely no proof to support any conclusion that this standard was violated and that there is no material issue of fact requiring a trial. Accordingly, claimant’s motion for summary judgment is denied and defendant’s motion for summary judgment dismissing the claim is granted. The Clerk of the Court is directed to close the file.

August 3, 2007
White Plains, New York

Judge of the Court of Claims

The court read and considered the following papers:

1. Defendant’s Notice of Motion, Affirmation and Exhibits.

2. Claimant’s Affirmation in Opposition and Exhibits.

3. Claimant’s Notice of Motion, Affirmation and Exhibits.

4. Defendant’s Affirmation in Opposition and Reply.