New York State Court of Claims

New York State Court of Claims

FLEISHER v. THE STATE OF NEW YORK, #2007-029-045, Claim No. 109685


State police vehicle that was responding to an accident scene with its lights and siren activated was not operated with reckless disregard for the safety of others, the standard applicable to authorized emergency vehicles, and the State is therefore not liable for the collision between the police vehicle and claimants’ vehicle.

Case Information

1 1.The court has stricken the unnecessary and improper references to the State Police and an individual officer from the caption.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has stricken the unnecessary and improper references to the State Police and an individual officer from the caption.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Dewey Lee, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 10, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from an August 3, 2003 automobile accident involving a vehicle owned by Neil Fleisher and a State Police patrol car driven by State Trooper Jason Lewis. Jane Fleisher testified that she was driving at the time of the accident, about 4:25 in the afternoon, and her husband was in the front passenger seat. She stated it had rained heavily earlier in the day and it was drizzling at the time of the accident. Mrs. Fleisher’s headlights and wipers were operating but her rear window defogger was not. She stated her window was open and the radio was off. She was driving home from the supermarket, proceeding southbound on Orange Turnpike in Monroe. About two blocks from her home she came to the T-intersection with Coffey Road, which runs eastbound from Orange Turnpike. Claimant stated she had her left-turn signal on, intending to turn onto Coffey Road, and was driving about 25 m.p.h. As she made the turn, her vehicle was struck in the area of the driver’s side door by a State Police vehicle. She did not see the vehicle that struck her prior to the collision, nor did she hear any siren or other warning of the approaching vehicle. She stated the impact sounded like an explosion and her vehicle felt like it was flying. She testified that the police vehicle did not have its overhead lights or siren operating.

On cross-examination, claimant testified that she never saw the police vehicle before it struck her car, although she looked in her rearview and side-view mirrors. She denied that she ever moved the vehicle to the right, towards the shoulder, prior to starting the left turn.

Neil Fleisher testified that he saw his wife activate the left-turn signal as they approached Coffey Road. At this point, she was driving about 25 m.p.h., but she slowed the vehicle as they approached Coffey Road. Mr. Fleisher also denied that the vehicle moved to the right before making the left turn. He alleged that their vehicle had entirely crossed the Orange Turnpike centerline before it was struck by the State Police vehicle. After the collision, Trooper Lewis approached their car, and Mr. Fleisher said to him “you didn’t have your lights on and you didn’t have your siren on.”

Trooper Lewis testified that, prior to the subject accident, he was on patrol in the Village of Washingtonville when he received a radio call concerning a car accident in the Town of Monroe. He advised his dispatcher that it would take him 20 minutes to respond due to the weather conditions, which he described as a heavy downpour. He stated he activated his overhead lights and siren and drove southbound on Route 208 to Route 17M. After a mile or two he turned right onto Still Road. Traffic on Still Road pulled off onto the shoulder to allow him to pass. He then turned onto Orange Turnpike, about one-half mile north of the intersection with Coffey Road. The officer estimated his speed at the time as approximately 35 m.p.h. There were eight to ten vehicles ahead of him on Orange Turnpike, all of which moved onto the shoulder to allow him to pass. He did not recall if he crossed the double yellow line into the northbound lane when passing these vehicles. In addition to the vehicles that pulled onto the shoulder, he observed a Dodge – claimants’ vehicle – that was slowing down, with its brake lights on. He did not see any turn signal, but did not contend that it was not activated, instead concluding that he was unable to see a turn signal because of the heavy rain. He alleged that the Dodge initially moved onto the right shoulder and then, when he was about 10 feet from it, turned left in front of his vehicle. He did not recall if he applied his brakes prior to striking the vehicle. After the collision, Mr. Fleisher came over to him and said “you didn’t have your lights on” and the officer responded that he did have his emergency lights operating.

Three days after the accident, Lewis gave his Troop Commander a report of the accident that contained essentially the same information as his trial testimony (Exhibit B).

After the collision, the driver of one of the vehicles Lewis had passed approached him at the scene and told him “when you passed us, you had your lights and siren on.” The witness gave Lewis his name and telephone number and said “give it to your supervisor.” That witness, Andrew Milman, an off-duty New York City police officer, gave the police a written statement (Exhibit D) and testified at trial. He stated that as he drove along Still Road, he saw a State Police car behind him with its lights and siren on. He pulled over and the police car passed him on the left. Approximately one-half mile later, he came upon the accident scene and he got out of his car and spoke to the Fleishers and Lewis. He did not identify himself as a police officer.

Milman wrote that the male passenger (Mr. Fleisher) was “screaming and cursing” that the trooper did not have his siren on, and the female driver was saying he didn’t have his lights on. He wrote: “When the trooper passed me a ½ mile earlier his lights and siren were both on. When I reached the accident scene the lights on the State Police vehicle were still on” (id., p 2).

When questioned by claimant’s counsel whether he was sure that Lewis’s vehicle was the same police car that had previously passed him, Milman stated he was 90% sure it was the same car.

The only other witness called by either party was an engineer and accident reconstruction expert, James Pugh, who was called by claimants. Based on his examination of the police report, photographs and statements of the parties and Milman, he concluded that the accident took place “largely in the left lane, perhaps overlapping the yellow line” and that Lewis’s vehicle was moving about 30 to 35 m.p.h. He opined that due to the “very wet” road conditions, Lewis should have waited for claimants’ vehicle to complete its turn before attempting to pass it.

Section 1104 of the Vehicle and Traffic Law relieves the operator of an authorized emergency vehicle from the duty to obey the otherwise-applicable rules and regulations governing the movement of vehicles, but does not relieve the driver from “the consequences of his reckless disregard for the safety of others” (VTL § 1104[e]). In Saarinen v Kerr (84 NY2d 494, 501 [1994]), reckless disregard was defined 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., quoting Prosser and Keeton, Torts § 34, at 213 [5th ed]; see also Powell v City of Mount Vernon, 228 AD2d 572 [2d Dept 1996]).

In Salzano v Korba (296 AD2d 393, 394 [2d Dept 2002]), a police officer responding to an emergency failed to stop at a Stop Sign and entered an intersection with a four-lane highway where his view of traffic was obstructed, failing to notice an oncoming vehicle, resulting in a collision. The Second Department, noting that the police officer “enjoyed a qualified privilege pursuant to Vehicle and Traffic Law § 1104 which permitted him to disregard the ordinary rules of prudent and responsible driving,” reversed the Supreme Court’s denial of defendant’s motion for summary judgment dismissing the action, in effect holding, as a matter of law, that the officer’s conduct did not amount to reckless disregard for the safety of others.

Not every case arising from an accident involving an emergency vehicle results in judgment for the defendant, as a matter of law. For example, in Badalamenti v City of New York (30 AD3d 452, 453 [2d Dept 2006]), the court stated:
“Here, the parties’ evidentiary submissions indicate that the defendant police officer did not stop at the stop sign which controlled the intersection where the accident occurred, that his view of the intersection was partially obstructed by a parked truck, and that he accelerated his speed upon entering the intersection. In addition, there are disputed issues of fact as to whether the defendant police officer activated the turret lights and siren on his vehicle before proceeding into the intersection. Under these circumstances, the defendants are not entitled to judgment as a matter of law on the issue of whether the defendant police officer was operating his vehicle in reckless disregard for others at the time of the accident.”
The Badalamenti case differed from this matter since it concerned a motion for summary judgment with an unresolved factual issue as to whether the lights and siren were activated. This case reaches a decision after trial with the court necessarily resolving the factual issues. Claimants’ initial contention is that the court should find that Lewis did not activate his emergency lights and siren and that his conduct should therefore be judged under an ordinary negligence standard of care. The only support for such a finding are claimants’ statements that they did not see or hear emergency lights or a siren. On the other hand, it is undisputed that Lewis was responding to the scene of a different accident, Lewis testified that his lights and siren were on, and the testimony of Milman, a disinterested witness, supported Lewis’s account of the events. Notwithstanding speculation by claimants’ counsel that Milman could have observed a different police vehicle, there is no evidence in the record to support the existence of another trooper car. Based on the totality of the proof, the court finds that although claimants did not see or hear the lights and siren, they were in fact operating. Therefore, the heightened “reckless disregard” standard of care is the benchmark against which Lewis’s conduct must be measured.

There is no basis in the trial record for a finding that Lewis acted with conscious disregard of, or indifference, to a known or obvious risk of probable harm. Lewis was entitled to operate his vehicle under the assumption that other drivers on the road would take heed of his approaching emergency vehicle and yield the right-of-way to him, as did all of the other vehicles he encountered that day. The court finds that Lewis’s speed was not excessive under the circumstances, notwithstanding the heavy rain, and that the location of the collision, with Lewis’s vehicle either partially or fully across the double yellow line, was not indicative of reckless conduct on his part but rather was most likely the result of a last-second attempt to avoid contact with claimants’ vehicle, which suddenly and unexpectedly crossed the road in front of him while attempting to make a left turn. Without evidence of reckless conduct on the part of Trooper Lewis, claimants’ cause of action must necessarily fail.

For the reasons stated herein, the Chief Clerk is directed to enter judgment of dismissal.

December 10, 2007
White Plains, New York

Judge of the Court of Claims