New York State Court of Claims

New York State Court of Claims

ALBA SOTO and JUAN MALDONADO v. THE STATE OF NEW YORK, #2008-036-407, Claim Nos. 111499, 11500


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111499, 11500
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
DAVOLI & VESNAVER, LLPBy: David Pomerantz, Esq.
Defendant’s attorney:
By: Joseph L. Paterno, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 17, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the court’s decision following a trial on the issue of liability involving an automobile collision in the Bronx between a passenger vehicle and a State Police car. The accident occurred on April 18, 2005 on Southern Boulevard when claimants’ minivan collided with the police car driven by a State Police investigator. The police car was attempting to make a U-turn, immediately upon pulling away from the curb, to pursue a suspect who had been watched in a police sting operation involving the theft of E-Z passes. The case calls on the court to determine whether the qualified privilege afforded to the operator of an authorized emergency vehicle under Vehicle and Traffic Law (“V&TL”) § 1104 applies to the facts here.

Claimants Alba Soto and her husband Juan Maldonado were in their Ford minivan, driving from their Bronx home on East 180th Street to Ms. Soto’s place of evening work on Fordham Road. Ms. Soto was at the wheel and her husband was in the front passenger seat. At approximately 8 p.m. they were driving north on Southern Boulevard. This is a four-lane road (two lanes in each direction separated by a double yellow line) with cars parked along the curb on each side. The weather was good and the road was dry.

Ms. Soto testified that just prior to the accident she had stopped for a traffic light on Southern Boulevard and East 187th Street. She was in the left lane and there were two or three cars in front of her. After the light changed, the car immediately in front of her was turning left, so Ms. Soto said she drove around the car and moved to the right lane as she crossed East 187th Street to continue north on Southern Boulevard. She said she had advanced approximately three car lengths past that cross street, traveling in the right lane at approximately 20-25 MPH, when suddenly she collided with a car that hit her minivan on the right front passenger side. According to Ms. Soto, she never saw or heard the car before it hit her, “not even for half a second.” She said she had seen flashing lights on vehicles coming from the opposite direction, southbound on Southern Boulevard, which passed by her, but she never saw any flashing lights on the car that suddenly hit her, nor did she hear a siren.

Mr. Maldonado substantially echoed his wife’s testimony. He said that after they crossed East 187th Street, he saw two cars coming toward them from the opposite direction on Southern Boulevard with flashing lights. He did not know what was going on. He never saw or heard anything on their side of Southern Boulevard until the impact of the collision itself.[1] He described the force of the collision on impact as “hard,” such that their minivan was pushed “a little bit.”

An ambulance responded to the scene and attendants pulled Ms. Soto from the van, after which both she and her husband were transported to the hospital. Both were treated and ultimately released from the hospital’s emergency room early the next morning at approximately 5 a.m.

Defendant called State Police Investigator Skylar King, who was the driver of the police vehicle. He has been with the State Police for 19 years. He was a state trooper for 15 years, and in August 2003 he was promoted to investigator. His duties in this position encompass the investigation of criminal infractions, highway fatalities and robberies. This accident occurred while he was part of a stakeout of a suspect in an investigation of stolen E-Z passes. The investigation had commenced a month earlier and involved a joint law enforcement task force of the Port Authority of New York and New Jersey and State Police personnel. Ultimately, 30 people were arrested and over $800,000 was recovered.

Mr. King was operating an unmarked New York State Thruway Authority vehicle, a 1996 Chevy Lumina. The car was equipped with red strobe lights on its rear deck, a red strobe light on the front visor of the passenger side, “wig-wag” headlights that flashed alternately, and a siren, all of which could be simultaneously activated by the driver with one lever. Accompanying him in the front passenger seat was Detective John Fitzgerald of the Port Authority police. Mr. King had parked the car at the curb on the northbound side of Southern Boulevard between East 187th Street and Fordham Road. He testified that he was three or four car lengths north of the East 187th Street intersection (on cross-examination, he acknowledged that at his deposition he had estimated the distance as six car lengths or half a block, at least). There were cars parked behind his (he estimated they were one or two car lengths behind, although at his deposition he said he did not recall) and cars also were parked in front of his (one-half to one car length in front, but at his deposition he had estimated the distance as three car lengths). A Port Authority car was the primary surveillance vehicle. It was situated on the southbound side of Southern Boulevard where the officers in it were observing the suspect from behind. The suspect’s vehicle was approximately six car lengths north of where Mr. King was parked, on the southbound side of the road. Two other New York State Police vehicles were part of the sting operation and were stationed on side streets north of East 187th Street, each car one block away from Southern Boulevard itself.

The officers in the primary surveillance vehicle observed their confidential informant purchase E-Z passes from the suspect. Mr. King and his partner waited for a signal from the primary surveillance vehicle to aid in the apprehension of the suspect. The plan was for Mr. King to make a U-turn from his northbound parking place into the southbound lanes so that his vehicle might block the suspect as he began to move south on Southern Boulevard. Mr. King’s car engine was running and his gear was in “park.”

Mr. King never was able to complete the U-turn because of the collision. According to his account, after an officer in the primary surveillance vehicle gave him the signal by Nextel phone to proceed, within approximately ten seconds claimants’ vehicle collided with him. According to Mr. King, when he got the Nextel signal he saw the lights of the primary surveillance vehicle begin to flash approximately three car lengths behind the suspect’s car. He switched on the lever to activate his own flashing lights and siren, then put his car in “drive” with his foot still on the brake, and looked in his side-view mirror for “a split second,” he said. All this consumed a “few seconds,” according to Mr. King. When he looked in his side-view mirror, he said he could see as far as the traffic light on East 187th Street, but did not see any vehicles coming, so he “proceeded into the lanes of traffic” to make the U-turn. A “few seconds” later, according to Mr. King, he saw Ms. Soto’s van, just as it was about to hit his front driver-side door. He jumped out of the driver seat to avoid injury, just as the door was pushed in upon impact and his leg was pinned against the steering wheel as his car came to rest sideways “across the roadway.” Thereafter, he, too, was taken to the hospital in a separate ambulance, and later discharged.

On cross-examination, Mr. King was read portions of his deposition testimony pertaining to when, in the sequence of events, he had looked in his side-view mirror. When first asked the question at his deposition, he answered, “quick glance . . . I was in between moving and stopped if there’s such a thing.” In response to an immediate follow-up question, he modified his answer and said, “Brake, glance, moving. I guess I was stopped.” (Deposition on January 12, 2007, pp 53-54.) At the time of impact, he estimated claimants were traveling at 20-30 MPH, and that he was making a “low speed” turn. When asked by the court how he did not see claimants’ moving vehicle coming up on him if he had looked in his side-view mirror, he answered that he “thought” claimants “possibly were in the left lane” at the time they hit his car and this was why he did not see their minivan in his mirror. The police report, which diagramed the accident, was introduced by claimant (Ex. 2) and shows defendant’s vehicle as having collided with claimants’ vehicle as claimants were traveling in the left lane. When Mr. King was asked whether he told the police who investigated the accident that claimants were traveling in the left lane, he responded, “I did not tell them that, no.” (See n 1, supra, which might tend to support Mr. King’s thoughts as to which lane claimants were driving in.)

Drivers of police emergency vehicles are allowed to disobey certain traffic laws, including regulations regarding turning or moving in specified directions, when they are involved in an emergency operation. (V&TL § 1104 [a] and [b] [4].) “Emergency operation” is defined in V&TL § 114-b to include “pursuing an actual or suspected violator of the law” and “responding to . . . a police call.” Emergency vehicles operating as police vehicles, even without activating their siren or red lights, continue to fall within the statutory exemptions. (V&TL § 1104 [c].)

If the conditions of the V&TL are satisfied, the operator of the emergency vehicle cannot be held liable for accidents so long as he acted “with due regard for the safety of all persons” and not in “reckless disregard for the safety of others.” (V&TL § 1104 [e].) The Court of Appeals has construed these “due regard” and “reckless disregard” provisions as imposing liability only for reckless disregard, not lack of due care under the circumstances, that is, negligence. (Saarinen v Kerr, 84 NY2d 494 [1994].) It takes more than a “momentary judgment lapse” to satisfy the reckless disregard test (Szczerbiak v Pilat, 90 NY2d 553 [1997]), and a claimant bears the burden of establishing that the driver of an authorized emergency vehicle acted recklessly.

Reckless disregard has been characterized as an exacting standard requiring a deliberate decision to ignore a likely harm. A person acts with reckless disregard for the safety of others when he consciously or intentionally does an act 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 the act is done with conscious indifference to its outcome. (Saarinen v Kerr, supra at 500; PJI 2:79A.)

Applying these legal principles to the evidence here, the court makes the following findings. Defendant’s unmarked State Thruway Authority vehicle driven by Mr. King was a police vehicle, and thus an “authorized emergency vehicle” under V&TL § 101. At the time of the accident, Mr. King was operating the vehicle in his capacity as a State Police investigator taking part in an official investigation of stolen E-Z passes and was a member of a surveillance team pursuing a suspect who had just been observed allegedly violating the law by selling stolen passes to a police informant. This was an emergency operation within the meaning of V&TL § 114-b. As such, Mr. King was permitted, under V&TL § 1104, to operate his emergency vehicle in disregard of traffic regulations or governing directions of movement or turning, and because his was a police vehicle, he could do so regardless whether his siren sounded or his red light(s) were lighted. In this circumstance, he was allowed to make a U-turn from a parking lane on Southern Boulevard between two cross streets in order to proceed in the opposite direction to assist in the apprehension of the suspect.

The court credits Mr. King’s account and finds that immediately after receiving a signal from the primary surveillance vehicle, he activated his emergency lights and siren, put his car in drive and then did make an effort to look in his side-view mirror, albeit for only a “split second” (or, as he described it at his deposition, a “quick glance”), either before moving his vehicle or simultaneous with his beginning to move (as he first described it at his deposition). Although Mr. King’s account very well may demonstrate that he was negligent in the way he attempted to satisfy himself no car was approaching, the court finds his conduct was not in “reckless disregard for the safety of others” because it does not evince a deliberate decision to ignore a likely harm. By switching on his emergency lights and siren (even though the law did not require that he do so as part of the emergency operation) and availing himself of his side-view mirror – however carelessly – Mr. King’s actions show a conscious effort to concern himself with the safety of others (and himself) and thus remove his conduct from the realm of recklessness.

Claimants, nevertheless, make two arguments in support of a finding of recklessness. They cite Allen v Town of Amherst (8 AD3d 996 [4th Dept 2004]) for the proposition that even though police officers in patrol vehicles responding to a “police call” are deemed to be involved in an emergency operation within the meaning of the statute, the trier of fact may consider the nature of the call in determining whether the officer’s conduct was reckless. In that case, the officer received a police dispatch reporting “customer trouble” which involved an intoxicated person at a bar. He responded by driving his vehicle at speeds up to 70 MPH through a small village where the traffic pattern was light to moderate, even as he was aware another officer also was responding to the call. The court found that the officer’s response to the “routine call,” although within the statutory definition of an “emergency,” was nevertheless in reckless disregard of the safety of others. (See also O’Banner v County of Sullivan, 16 AD3d 950 [3d Dept 2005]). Claimants point to the facts here that Mr. King was part of a police sting operation involving a nonviolent crime, that is, the sale of E-Z passes; three other police vehicles were involved in the operation in addition to his own; the alleged suspect already had completed the transaction and had not fled the scene; and immediately after the accident, the suspect was apprehended by the primary surveillance vehicle. Claimants thus argue that, under these circumstances, Mr. King’s attempt at a U-turn in the middle of an urban road was itself a reckless act. The court disagrees. V&TL § 114-b specifies two separate police-related operations as within the definition of an emergency, “pursuing an actual or suspected violator of the law” and “responding to . . . [a] police call.” While claimants cite cases which considered the nature of a “police call” in evaluating recklessness, they cite none where a court held a similar evaluation to be appropriate when police are pursuing an actual or suspected lawbreaker.[2] This makes sense. One category of “emergency” police work entails all kinds of “ police calls,” such as responding to a 911call to investigate a family dispute (Criscione v City of New York, 97 NY2d 152 [2001]), whereas endemic to the other specified category is the need to act “swiftly and resolutely” to apprehend an actual or suspected lawbreaker. (Saarinen v Kerr, 84 NY2d at 501-502.)

Even if the statute is read to allow the circumstances to be considered when a perpetrator is being pursued, the court finds that claimants have failed to prove Mr. King was reckless. The alleged criminal operation involved hundreds of thousands of dollars and a ring of thirty. This was serious suspected criminal activity. Immediately after the alleged perpetrator’s transaction was effected and the primary surveillance vehicle had switched on its police emergency lights there was a very real risk the suspect might try to flee. Under these circumstances, it cannot be said that Mr. King, simply by attempting to turn his vehicle in the opposite direction on Southern Boulevard in response to the Nextel signal to help apprehend such a suspect, was engaged in a reckless act.

Left for consideration is claimants’ argument that Mr. King was reckless in the way he attempted the turn. The court has credited Mr. King’s account that he switched on his emergency lights and siren and glanced at his side-view mirror. This is sufficient evidence, in and of itself, to demonstrate he did not act with “conscious indifference to the outcome” of what he attempted. The act of switching on his lights and siren shows that he was conscious of the need to warn surrounding traffic of the emergency, and his having glanced in his side-view mirror shows he was conscious of the need to satisfy himself it was clear to proceed. That he may have started his turn at the same time he looked in his mirror, or did not look in the mirror long enough before actually turning, or did not also turn his head before attempting such a maneuver in the middle of the block of a busy urban road, probably shows a lack of due care; but it does not show he acted recklessly.

The Court of Appeals, in construing V&TL § 1104 as having established this “reckless disregard” standard observed:
Where the laws in question involve the regulation of vehicular traffic, the exercise of this privilege will inevitably increase the risk of harm to innocent motorists and pedestrians. Indeed, emergency personnel must routinely make conscious choices that will necessarily escalate the over-all [sic] risk to the public at large in the service of an immediate, specific law enforcement or public safety goal.

[T]he possibility of incurring civil liability for what amounts to a mere failure of judgment could deter emergency personnel from acting decisively and taking calculated risks in order to save life or property or to apprehend miscreants.”

(Saarinen v Kerr, supra, at 502.)

In this case, Ms. Soto and Mr. Maldonado present the classic case of “innocent motorists” (in the words of the Court of Appeals) whose interests must be balanced against those of society in favor of encouraging emergency personnel to act “swiftly and resolutely” even when the public’s safety may be compromised as a result. However unfortunate was the accident in this instance, the legal result here is what the law, as carefully considered by both the Legislature and the Court of Appeals, has prescribed.

Let judgments be entered dismissing the claims.

September 17, 2008
New York, New York

Judge of the Court of Claims

[1]. When challenged on cross-examination whether claimants were not paying attention because he was looking to his left at the flashing lights on the cars coming from the opposite direction, Mr. Maldonado insisted he was looking straight ahead and that he still was able to see the lights on the cars coming at him because they were only one lane away on the other side of the double yellow line. Defense counsel then asked whether this meant claimants were driving in the left lane, and Mr. Maldonado insisted they were driving in the right lane at the time of the accident.
[2]. Claimants also cite Mattera v Avis Rent A Car Sys. (245 AD2d 274 [2d Dept 1997]) where the court held that police responding to the scene of a buy-and-bust operation when the suspect already was being held was not an emergency operation at all. It is not clear from the decision how the court there did not view the “police call” provision of V&TL § 114-b as within the definition of “emergency operation.” Nevertheless, it is clear that, unlike the facts here where Mr. King was pursuing a “suspected violator of the law,” the facts there were that the suspect already was in police custody and the police vehicle was not pursuing him at the time of the accident.