Both parties have filed motions relating to the appropriate legal standard
applicable to the driver of the bus. Defendant asserts that the exemptions of
Vehicle and Traffic Law § 1104 apply and that, accordingly, liability can
only attach if Officer Sindoni was reckless. Defendant further argues that
summary judgment is appropriate because the actions of Officer Sindoni, while
perhaps negligent, do not rise to the level of reckless disregard for the safety
of others. Claimant seeks to have Defendant’s fifth affirmative defense
stricken from the answer. That defense sets forth Defendant’s contention
that this action is governed by the reckless disregard standard. Claimant
argues that the protections of Vehicle and Traffic Law § 1104 do not apply
and that the appropriate standard is simple negligence. Further, even if the
reckless standard set forth in Vehicle and Traffic Law § 1104 is
appropriate, Claimant argues that there is at least a question of fact
concerning whether Sindoni’s actions meet this higher standard.
In any application for summary judgment, the moving party bears a heavy burden
in establishing that he or she is entitled to judgment as a matter of law,
tendering sufficient evidence to demonstrate the absence of any material issues
of fact (Andre v Pomeroy, 35 NY2d 361; Winegrad v New York Univ. Med.
Center, 64 NY2d 851, 853).
In support of its application, Defendant addresses the various provisions of
the Vehicle and Traffic Law which support its position that the reckless
standard is applicable. Vehicle and Traffic Law § 1104 provides that the
driver of an “authorized emergency vehicle” in the course of
“emergency operation” will be liable only for reckless disregard for
the safety of others and will be otherwise immune from actions based on claims
of simple negligence. Vehicle and Traffic Law § 101 states that
“authorized emergency vehicles” include “correction
vehicle.” Vehicle and Traffic Law § 114-b defines “emergency
operation” to include “transporting prisoners.” Accordingly,
it would preliminarily seem obvious that the bus used by the DOCS to transport
prisoners did enjoy the privileges of § 1104.
The confusing factor, its seems, is that Vehicle and Traffic Law § 1104
divides the group of otherwise qualified vehicles into two categories: police
vehicles and non-police vehicles. Vehicle and Traffic Law § 1104(c)
indicates that, unless the “authorized emergency vehicle” is also a
“police vehicle,” it must have flashing lights and/or a siren
activated at the time to qualify for the immunities provided in the section.
The DOCS bus in question was not equipped with such audible and visual signals
and, therefore, unless it was also a “police vehicle,” it did not
enjoy the privileges of Vehicle and Traffic Law §1104.
Accordingly, whether the DOCS bus qualifies as a “police vehicle”
under the statute has been a hotly contested issue in this application.
According to Defendant, Vehicle and Traffic Law § 132-a provides that any
vehicle owned by the State and operated by a police or law enforcement agent is
deemed to be a “police vehicle.” To this end, each party has also
disputed whether or not Officer Sindoni was a “police officer” as
defined by Vehicle and Traffic Law § 132. For the purposes of this
application, I find that Officer Sindoni was a “peace officer” as
defined by Criminal Procedure Law § 2.10 and, therefore, he was also a
“police officer” as defined by Vehicle and Traffic Law
The analysis does not necessarily end there. One could argue that Vehicle and
Traffic Law § 132-a does not define a police vehicle as one operated by a
law enforcement agent, but rather one operated by a law enforcement
agency. Put another way, it is not the qualifications of the individual
driver, but rather the agency for whom he drives, that determines whether or not
the vehicle is a police vehicle (see e.g. Church v City of New York, 268
AD2d 382), prisoner transport van without lights and sirens a “police
vehicle” despite being driven by civilian operator). Vehicle and Traffic
Law § 132-a defines a police vehicle as “every vehicle owned by the
state, . . . and operated by the police department or law enforcement agency of
such governmental unit . . .”
Accordingly, to the extent that Officer Sindoni’s status as a police
officer is not sufficient to qualify the DOCS bus as a “police
vehicle,” I find it necessary to address the issue of whether the DOCS bus
qualifies as a police vehicle because the New York State Department of
Correctional Services is a “law enforcement agency” under the
statute. In this regard, I note that the statute itself does not define
“law enforcement agency.” In Matter of Katherine B. v
Cataldo (5 NY3d 196), Judge Susan Phillips Read also searched for a
statutory definition of “law enforcement agency,” albeit in the
context of determining authority to request the unsealing of previously sealed
criminal records. She determined that “[t]he term ‘law enforcement
agency’ therefore includes law enforcement entities in addition to police
departments and the Division of Criminal Justice Services” (5 NY3d 196,
204). Similarly, I note that Black’s Law Dictionary, 7th Ed., defines
“law enforcement” as “[t]he detection and punishment of
violations of the law.” Accordingly, as the DOCS is both a part of the
criminal justice system and specifically involved in carrying out punishments of
violations of the law, and as I can find no support for the contrary argument, I
find that the DOCS is a law enforcement agency.
Finally, I find no significance in the fact that Defendant did not own title to
the DOCS bus, but rather leased it. Vehicle and Traffic Law § 128
specifically includes “lessee” in the definition of owner.
Accordingly, I find that Defendant does enjoy the privileges set forth in
Vehicle and Traffic Law § 1104 and the higher, reckless disregard standard
This brings us to whether or not Defendant has met its burden of demonstrating
its right to summary judgment on the issue of reckless disregard. I am aware
that in Heckstall v State of New York (Ct Cl, April 26, 2004 [Motion No.
M-66939], Patti, J., UID #2004-013-021) my colleague, the Hon. Philip J. Patti,
addressed similar issues arising from the very same accident. I note that Judge
Patti found, as did I, that the higher, reckless disregard standard applied. He
also found that the Claimant in that action had failed to demonstrate the merit
of the proposed action. Claimant correctly points out, however, that a late
claim application involves a different type of analysis with a different burden.
Here, the record indicates that Claimant was dozing at the time of the accident
and does not know how the accident occurred. Officer Sindoni, indicates that
the vehicle in front of him (the “Pinelli” vehicle) was towing a
trailer, traveling very slowly and did not have any turn signals on. His
affidavit indicates that he determined that this vehicle presented a potential
hazard and a security risk, so he decided to pass the vehicle and keep moving.
He states that he signaled left and pulled out to pass the Pinelli vehicle. As
he did so, the Pinelli vehicle turned left into the side of the DOCS bus. I
find that, based upon Officer Sindoni’s Affidavit, Defendant has submitted
adequate proof indicating that, while perhaps negligent, Officer Sindoni’s
actions were, at worst, a momentary lapse in attentiveness.
When the moving party has successfully met its burden, the party who opposes a
summary judgment motion must "assemble, lay bare and reveal his proofs, in order
to show that the matters set up in his [pleading] are real and are capable of
being established upon a trial" (DiSabato v Soffes, 9 AD2d 297 at 301).
“Bald, conclusory assertions” (Ehrlich v American Moninger
Greenhouse Manufacturing Corp., 26 NY2d 255, 259) and the “shadowy
semblance of an issue” cannot, by themselves, defeat a motion for summary
judgment (DiSabato v Soffes, supra, at 300).
In opposition to Defendant’s motion, Claimant pointed out that Mr.
Pinelli, the driver of the other vehicle involved in the accident, told a
different version of the events at issue. He states that he was stopped in
traffic for approximately one minute while waiting to make a left hand turn. He
had his turn signal on. According to him, there were two other cars between him
and the DOCS bus. When he finally determined that oncoming traffic no longer
presented a danger, he turned left and almost instantaneously made contact with
the DOCS bus.
In order to demonstrate reckless disregard, Claimant must demonstrate that
Officer Sindoni’s actions were “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 Pilat, 90 NY2d 553, 557). Although this is a high
standard, if I were to adopt Mr. Pinelli’s version of the events, as I
must for purposes of this motion, I cannot state that, as a matter of law,
Claimant cannot demonstrate reckless disregard. Therefore, although I find that
Defendant has adequately demonstrated that the higher standard of reckless
disregard is applicable to this matter, summary judgment would be
Accordingly, it is hereby
ORDERED, that Defendant’s motion and Claimant’s cross-motion are