New York State Court of Claims

New York State Court of Claims

Harrington v. STATE OF NEW YORK, #2009-032-501, Claim No. 109133


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:
Robert W. Nishman, Esq.
By: Moore & Lane, LLPBy: Jonathan A. Moore, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Glenn C. King, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
March 31, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for injuries he allegedly sustained as a result of a motor vehicle accident which occurred on January 30, 2003. At the time of the accident, Claimant was an inmate at Eastern Correctional Facility and was being transported, along with three other inmates, in a Department of Correctional Services (hereinafter “DOCS”) van, from Eastern Correctional Facility to Albany Medical Center for medical appointments. Claimant contends that the accident occurred when DOCS’ van passed in front of a tractor-trailer while attempting to exit the New York State Thruway at Exit 23.

The claim was bifurcated and a trial on liability was held on June 12, 2008. The only witness to testify was Duncan Bey, a Correction Officer who was a passenger in DOCS’ van at the time of the accident. The transcript of the deposition of claimant (Exhibit 12), who was unable to appear at the trial, was received into evidence in lieu of his actual testimony. The deposition transcripts of Steven January (the driver of the other vehicle involved in the accident ) and Correction Officer Bey were also received into evidence (Exhibits 10 & 11, respectively). Correction Officer Patricia Rybak, the driver of DOCS’ van, was ill and out of state on the date of the trial, and unavailable to testify.
Of the three witnesses, only Steven January, the driver of the tractor-trailer, was able to offer any testimony regarding how the accident occurred. Notably, he is the defendant in a Supreme Court action commenced by Claimant. The other two witnesses, specifically Claimant and Correction Officer Duncan Bey, had limited visibility outside DOCS’ van, and therefore were unable to offer much testimony as to how the accident actually occurred.

Claimant testified that he was seated on the left side of DOCS’ van in either the third seat or the back seat, with grating on the window to his left and a Correction Officer seated to his right (Exhibit 12, pp 12, 13). He testified that he did not recall seeing a truck on his right at any point (Exhibit 12, p 14), but that at the time of the impact, DOCS’ van was going from the left lane of the highway towards the exit ramp on the right (Exhibit 12, p 15). He did not recall any of the Correction Officers in the vehicle saying anything to anyone just before the impact (Exhibit 12, p 15). He testified that after the impact, his head and shoulder hit the grating to the left of him and that his knees then hit the floor (Exhibit 12, pp 16-17). He further testified that he believed that the Correction Officer seated to his right also fell to the floor after the impact (Exhibit 12, p 17).

Correction Officer Duncan Bey (hereinafter “Bey”) offered limited testimony regarding the accident as, by his own admission, he was unable to see out the van windows to have actual knowledge as to how the accident happened (Exhibit 11, p 13). However, he confirmed that claimant was seated in the rear passenger seat of DOCS’ van (Exhibit 11, p 6), to the left of Bey, and that the security grating was to the left of claimant (Exhibit 11, pp 10-11). He testified that he did not see the tractor-trailer that was involved in the accident, but that he knew they had passed a vehicle (Exhibit 11, p 16). He recalled DOCS’ van traveling in the left lane and at some point going into the right lane prior to the accident (Exhibit 11, p 16). He said he heard tires locking up on another vehicle (Exhibit 11, p 16), but that he did not hear the sound of any horns before the collision (Exhibit 11, p 17). He testified that it was not until he heard the tires locking up that he sensed something out of the ordinary (Exhibit 11, p 17). Bey testified that the accident occurred after DOCS’ van had made a lane change and was off the Thruway (Exhibit 11, p 23) and that after the impact, the vehicles came to rest on the left side of the exit ramp, with the tractor-trailer behind DOCS’ van (Exhibit 11, p 24). He further testified that when DOCS’ van came to a rest, claimant was seated right next to him and that he never saw claimant on the floor (Exhibit 11, pp 25-26).

Steven January (hereinafter “January”), the driver of the tractor-trailer involved in the accident, testified that he had his cruise control set at 55 miles per hour on the day of the accident (Exhibit 10, pp 36-37), and that when he first saw DOCS’ van, it was coming around from the back of his trailer. He noticed it from his left side mirror (Exhibit 10, p 38). He testified that he saw it pull out to his left and go around the driver side of his truck, and that it was moving faster than his truck (Exhibit 10, p 39). January testified that while he was traveling in the right lane, DOCS’ van passed his truck in the left lane (Exhibit 10, p 41). He did not notice any directional signal on and did not remember whether DOCS’ van’s headlights were on (Exhibit 10, pp 42-43). January testified that prior to the accident, DOCS’ van was in front and on the left of him while it was trying to move over (Exhibit 10, p 46). He further testified that DOCS’ van had entered the right lane of traffic, the lane January had been in, and was completely in front of his truck prior to the collision (Exhibit 10, pp 43, 52). He only noticed the brakes on DOCS’ van when they were both negotiating a hard curve ahead on the exit ramp (Exhibit 10, p 53). January testified that from the time he first noticed DOCS’ van coming into his lane of traffic until the time of the collision, a period of 20-30 seconds elapsed (Exhibit 10, pp 56-57).

At the conclusion of the trial, Defendant moved to dismiss the claim based upon claimant’s failure to set forth a prima facie case of reckless disregard on the part of the State.
Defendant contends that pursuant to Vehicle and Traffic Law § 1104 DOCS’ van, operated by Officer Rybak, was an “authorized emergency vehicle” and that it was engaged in “emergency operation” at the time of the accident, such that liability may not be imposed unless it is established that the operator of the vehicle acted with “reckless disregard for the safety of others.” Defendant further contends that claimant has failed to set forth a prima facie claim of such reckless disregard and seeks dismissal of the claim.

Claimant contends that DOCS’ vehicle is not entitled to qualified immunity because, pursuant to Vehicle and Traffic Law § 1104 (c), a vehicle that is neither a police vehicle nor a police bicycle must be equipped with, and actually operate, sirens and emergency lights while engaging in the emergency operation of transporting prisoners. Claimant further contends that there is no proof that said warning devices existed on the subject vehicle, let alone being activated before or at the time of the accident, and that Defendant, therefore, is subject to the ordinary standard of negligence.

Hon. James H. Ferreira previously determined, in a cross-motion for summary judgment, that Defendant is bound by the reckless disregard standard set forth in Vehicle and Traffic Law § 1104 (Harrington v State of New York, Ct Cl, November 7, 2007 [Claim No. 109133, Motion Nos. M-73276, CM-73508], Ferreira, J., UID 2007-039-045). This Court agrees. Moreover, this is the law of the case.

Vehicle and Traffic Law § 1104 exempts an “authorized emergency vehicle” from certain rules of the road when it is involved in an “emergency operation.” Unless that vehicle is a “police vehicle or a police bicycle,” the exemptions set forth in Vehicle and Traffic Law § 1104 apply only when audible signals are sounded from the vehicle and when at least one red light is displayed and visible from a distance of 500 feet. Claimant argues that DOCS’ van in which claimant was a passenger was not operating warning bells or lights and that it, therefore, cannot be entitled to the reckless disregard standard. This Court disagrees.

Vehicle and Traffic Law § 132-a defines a “police vehicle” as “[e]very vehicle owned by the state, a public authority, a county, town, city or village, and operated by the police department or law enforcement agency of such governmental unit or by a constable or police constable of a town when acting pursuant to his special duties.” Vehicle and Traffic Law § 114-b defines “emergency operation” as, among other things, “[t]he operation, or parking, of an authorized emergency vehicle,” when the vehicle is engaged in, among other things “transporting prisoners.” In Klayman v City of New York (130 AD2d 551 [2d Dept 1987]), a vehicle owned by the New York City Department of Corrections was held to be a “police vehicle.” In Church v City of New York (268 AD2d 382 [1st Dept 2000]), a New York City police van engaged in transporting prisoners from a precinct to central booking was held to be a police vehicle engaged in emergency operation.

In light of the foregoing, this Court agrees with the Decision and Order of Judge Ferreira on the cross-motion for summary judgment, which found that DOCS’ van was a police vehicle engaged in an emergency operation and that defendant is therefore entitled to the heightened standard of negligence, specifically, the standard of reckless disregard. As set forth in Footnote 1 of said Decision and Order, the Court also recognizes that application of the definition of an “emergency operation” to include the transportation of prisoners under any circumstances may not always serve the intended purpose of Vehicle and Traffic Law § 1104, but that unless and until the Legislature amends Vehicle and Traffic Law § 114-b to narrow the scope of when the transportation of prisoners constitutes an emergency operation, the Court must abide by the statute’s plain, but apparently broad, meaning (see Matter of M.B., 6 NY3d 437, 447 [2006]; Matter of Wiley v City of Watertown Fire Dept., 39 AD3d 975, 976-977 [3d Dept 2007]; Ryder v City of New York, 32 AD3d 836, 837 [2d Dept 2006], lv dismissed 9 NY3d 948 [2007]).

A standard of reckless disregard demands more than a showing of a lack of due care under the circumstances, which is the showing typically associated with ordinary negligence claims – it “requires 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 [1994]). In order to find Defendant liable under the standard of reckless disregard, claimant would need to show more than a momentary lapse of judgment (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]).

The proof adduced at trial fails to establish that the driver of DOCS’ van intentionally did 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 that she did so with conscious indifference to the outcome. At most, defendant may have violated a lane-change procedure by making a lane change in front of Mr. January’s vehicle without signaling ahead of time. However, conduct which violates provisions of the Vehicle and Traffic Law relating to maximum rate of speed, lane-changing procedures, and other rules of the road does not, standing alone, render the operator of an emergency vehicle reckless or provide an independent basis for liability (see Turini v County of Suffolk, 8 AD3d 260 [2d Dept 2004], lv denied 3 NY3d 611 [2004]; Szczerbiak v Pilat, 90 NY2d 553, supra at 557; Saarinen v Kerr, 84 NY2d 494, supra at 501). This is especially the case where, as here, the accident did not occur immediately upon said lane change.

Accordingly, the claim is dismissed and the Chief Clerk is directed to enter judgment accordingly. Any applications on which the Court previously reserved judgment or which were not previously decided are denied.

March 31, 2009
Albany, New York

Judge of the Court of Claims