New York State Court of Claims

New York State Court of Claims
CABLE v. THE STATE OF NEW YORK, # 2018-054-107, Claim No. 129832, Motion Nos. M-92699, CM-92719


Trooper's "momentary lapse in judgment," did not rise to the level of a reckless disregard for the safety of others. Defendant granted summary judgment. claim dismissed.

Case information

UID: 2018-054-107
Claimant short name: CABLE
Footnote (claimant name) :
Footnote (defendant name) : The Court has amended the caption to reflect the only proper party defendant and claimants have conceded to this amendment (see Reply Affirmation of Claimants' Counsel, 3).
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129832
Motion number(s): M-92699, CM-92719
Cross-motion number(s):
Claimant's attorney: GALLO VITUCCI & KLAR, LLP
By: Matthew P. Levy, Esq.
Defendant's attorney: HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 26, 2018
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers numbered 1-4 were read and considered by the Court on claimants' motion for summary judgment and defendant's cross-motion for summary judgment:

Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1

Notice of Cross-Motion, Attorney's Supporting Affirmation and Exhibits...............2

Affirmation in Opposition to Cross-Motion and Reply Affirmation........................3

Defendant's Reply Affirmation................................................................................4

This claim arises out of an accident that occurred on June 2, 2017 at approximately 9:00 p.m. on the Palisades Interstate Parkway near exit 12 in Rockland County involving Edward Cable, hereinafter claimant,(2) and New York State Trooper Daniel Balletto. Claimants move for summary judgment on the issue of liability. Claimants argue that the applicable standard of care is negligence, rather than recklessness, and that the trooper was negligent. Defendant cross-moves for summary judgment arguing that recklessness is the applicable standard of care and that the trooper's conduct, as a matter of law, was not reckless.

The undisputed facts are as follows. Claimant was driving his motorcycle northbound in the right lane of the parkway. The posted speed limit was 50 miles per hour. Claimant observed the trooper car parked on the right shoulder with the overhead lights activated (Claimants' Ex. D, pp 19-21). The trooper was issuing a traffic summons to a driver who was also parked on the right shoulder (Claimants' Ex. F, pp 41-44). Claimant attempted to move over into the left lane; however there was a car in that lane, so claimant moved as far left as possible within the right lane of traffic (Claimants' Ex. D, p 19). Meanwhile the trooper, who was still on the shoulder, received a radio call to respond to another trooper in need of assistance at the Palisades Center Mall (Claimants' Ex. F, pp 45, 48-49). In response to the call, the trooper intended to exit the shoulder, proceed across both lanes of northbound traffic, over the grassy median, and onto the southbound lanes of traffic towards the mall (id. at 51-54).

The trooper testified at his deposition that, before entering the northbound lanes of the parkway, he looked in his side view and rearview mirrors and looked behind him for oncoming traffic (id. at 54-55). The trooper observed northbound headlights behind him; however he believed that they were at a sufficient distance to enable him to safely enter the parkway (id. at 58-60). The trooper entered the parkway in front of claimant's motorcycle(3) (id. at 66-67).

In an effort to avoid impacting with the rear of the trooper's car, claimant "abruptly" applied his brakes and "aimed for the grass" (Claimants' Ex. D, pp 19-20). At that point, claimant's motorcycle went down and claimant fell (id. at 20). Claimant sustained injuries including a broken left ankle.

Unaware of claimant's accident, the trooper continued to proceed across the two northbound lanes of traffic and onto the grassy median as he attempted to make a U-turn into the southbound lanes of traffic (Claimants' Ex. F, pp 60-61). The trooper was partially on the grassy median when he heard a "metal scratching noise" which alerted him to claimant's accident (id. at 48, 52). The trooper then responded to claimant and called for Emergency Medical Services (id. at 63, 65).


In Kabir (16 NY3d), the Court of Appeals held that the reckless disregard standard of care set forth in Vehicle and Traffic Law 1104 (e), as opposed to the principles of ordinary negligence, is applicable to an authorized emergency vehicle engaged in an emergency operation only when the driver is engaged in the specific conduct set forth in Vehicle and Traffic Law 1104 (b). The privileged conduct set forth in Vehicle and Traffic Law 1104 (b) is as follows:

"1. Stop, stand or park irrespective of the provisions of this title;

2. Proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation;

3. Exceed the maximum sped limits so long as he does not endanger life or property;

4. Disregard regulations governing directions of movement or turning in specified directions."

In this matter, the trooper was driving an "authorized emergency vehicle" (Vehicle and Traffic Law 101) and was "engaged in an emergency operation" (Vehicle and Traffic Law 114-b) by responding to a radio call to assist another trooper. The critical issue is whether the trooper was engaged in the specified conduct set forth in Vehicle and Traffic Law 1104 (b). The Court finds that the trooper's conduct falls within Vehicle and Traffic Law 1104 (b) (4) in that the trooper was "attempting to execute a U-turn" in disregard of the regulations governing directions of movement or turning in specified directions (Dodds v Town of Hamburg, 117 AD3d 1428, 1429 [4th Dept 2014]). Accordingly, the trooper's conduct cannot be a basis for liability, unless he acted with a "reckless disregard for the safety of others" (Vehicle and Traffic Law 1104 [e]). As reasoned by the Court of Appeals in Saarinen v Kerr (84 NY2d 494, 502 [1994]) and reaffirmed in Ayers v O'Brien (13 NY3d 456, 459 [2009]), the purpose of the statute and the recklessness disregard standard is to give "operators of emergency vehicles the freedom to perform their duties unhampered by the normal rules of the road." The Court of Appeals further reasoned that "the 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" (id.). Thus, the recklessness disregard standard, which requires a claimant to show more than a momentary lapse in judgment on the part of the defendant, "allows emergency personnel to act swiftly and resolutely while at the same time protecting the public's safety" (id.).

In the case at bar, the trooper testified at his deposition that before entering the parkway, he looked in his side and rearview mirrors and behind him and believed that the oncoming motorists were at a sufficient distance to enable him to safely enter the roadway and execute a U-turn over the grassy median. The trooper's "mistaken belief that the other [north]bound vehicles were sufficiently behind him and that it was, at that moment, safe to execute a U-turn" constituted a "momentary lapse in judgment," which this Court finds did not rise to the level of a reckless disregard for the safety of others (Dodds, 117 AD3d at 1429-1430, quoting Greene v State of New York, 71 AD3d 1310, 1312 [3d Dept 2010]; see Szczerbak v Pilat, 90 NY2d 553, 557 [1997]; Jones v Albany County Sheriff's Dept., 123 AD3d 1331 [3d Dept 2014] [unmarked sheriff's car was not reckless as matter of law in making a U-turn in response to a perceived need of assistance of another officer]).

Accordingly, the Court DENIES claimants' motion for summary judgment and GRANTS defendant's cross-motion for summary judgment dismissing the claim.

October 26, 2018

White Plains, New York


Judge of the Court of Claims

2. The claim of Marisol Cable, claimant's wife, is derivative.

3. The trooper denied turning off his overhead lights before exiting the shoulder (Claimants' Ex. F, p 53). Claimant

maintains that the trooper's overhead lights were off when he entered the parkway (Claimants' Ex. D, p 19). Whether the lights were activated when the trooper entered the parkway has no bearing on the issue of liability as Vehicle and Traffic Law 1104 [c] explicitly exempts police vehicles from the requirement applicable to other emergency vehicles to utilize audible signals, sirens and lights when reasonably necessary (see Kabir v County of Monroe, 16 NY3d 217 [2011]).