Opinion
403318/10 16674 16673
01-19-2016
Emma O. ASANTE, Plaintiff–Appellant–Respondent, v. Prince ASANTE, Defendant–Respondent–Appellant, The City of New York, et al., Defendants–Respondents.
Hoberman & Trepp, P.C., Bronx (Adam F. Raclaw of counsel), for appellant-respondent. Burns & Nallan, New York (Vanessa A. Gomez of counsel), for respondent-appellant. Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondents.
Hoberman & Trepp, P.C., Bronx (Adam F. Raclaw of counsel), for appellant-respondent.
Burns & Nallan, New York (Vanessa A. Gomez of counsel), for respondent-appellant.
Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondents.
Opinion
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered November 12, 2013, which granted the New York City defendants reargument of their motion for summary judgment dismissing the complaint as against them and, upon reargument, granted the motion, unanimously affirmed, without costs.
The City defendants established prima facie entitlement to summary judgment dismissing plaintiff's personal injury action against them based upon: (1) Officer Gil's uncontradicted deposition testimony that she was responding to a “10–85” radio call of an officer in need of assistance when the police vehicle she was driving collided with appellants' motor vehicle (see generally Vehicle & Traffic Law [VTL] § 114–b; Criscione v. City of New York, 97 N.Y.2d 152, 736 N.Y.S.2d 656, 762 N.E.2d 342 2001 ); (2) deposition testimony offered by Officer Gil that the light was red against her when she attempted to get through the intersection, combined with appellants' deposition testimony that they had a green light in their favor at the time of the accident, which supported Officer Gil's position that her conduct was privileged under Vehicle & Traffic Law § 1104(b), entitling her to the “reckless disregard” standard (see VTL 1104[e]; see generally Kabir v. County of Monroe, 16 N.Y.3d 217, 227, 920 N.Y.S.2d 268, 945 N.E.2d 461 (2011); Tatishev v. City of New York, 84 A.D.3d 656, 923 N.Y.S.2d 523 (1st Dept.2011); and (3) Officer Gil's testimony that upon reaching the intersection, she observed appellants' vehicle, stopped the police vehicle and waited for appellants' vehicle to also stop prior to attempting to go around the front of that vehicle; however, both vehicles moved forward at the same time resulting in the accident (see generally Frezzell v. City of New York, 24 N.Y.3d 213, 997 N.Y.S.2d 367, 21 N.E.3d 1028 2014; Szczerbiak v. Pilat, 90 N.Y.2d 553, 664 N.Y.S.2d 252, 686 N.E.2d 1346 1997 ).
The burden on the motion having shifted, appellants failed to offer evidence that raised a triable issue of fact (see Frezzell, 24 N.Y.3d at 218, 997 N.Y.S.2d 367, 21 N.E.3d 1028).
MAZZARELLI, J.P., ACOSTA, ANDRIAS, MOSKOWITZ, JJ., concur.