Opinion
2011-11-15
McKayla SPENCER, an infant by her Guardian ad Litem, Desmond Gordon, et al., Plaintiffs–Respondents,v.ASTRALEASE ASSOCIATED, INC., Defendant,Lifeline Ambulance Services Inc., et al., Defendants–Appellants,Perisis Y. Miller, et al., Defendants–Respondents.
Galvano & Xanthakis, P.C., New York (Steven F. Granville of counsel), for appellants.Scott Baron & Associates, P.C., Howard Beach (Edward C. Lehman of counsel), for McKayla Spencer and Desmond Gordon, respondents.Picciano & Scahill, P.C., Westbury (Andrea E. Ferrucci of counsel), for Perisis Y. Miller and Alethia Gordon, respondents.
Galvano & Xanthakis, P.C., New York (Steven F. Granville of counsel), for appellants.Scott Baron & Associates, P.C., Howard Beach (Edward C. Lehman of counsel), for McKayla Spencer and Desmond Gordon, respondents.Picciano & Scahill, P.C., Westbury (Andrea E. Ferrucci of counsel), for Perisis Y. Miller and Alethia Gordon, respondents.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered October 25, 2010, which, insofar as appealed from, in this action for personal injuries allegedly sustained by infant plaintiff in a motor vehicle accident, denied the motion of defendants Lifeline Ambulance Services Inc. and Gilberto Ward for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of Lifeline Ambulance Services, Inc. and Gilberto Ward dismissing the complaint as against them.
Infant plaintiff was a rear-seat passenger in a vehicle owned by defendant Miller and operated by defendant Gordon (infant plaintiff's mother). As the vehicle driven by Gordon proceeded through an intersection with a green light in her favor, it was struck by an ambulance leased by Lifeline and operated by Ward, who was responding to an emergency situation. The impact caused both vehicles to strike a third vehicle owned by a nonparty.
The record demonstrates that Lifeline and Ward were entitled to summary judgment. The evidence established that Ward activated his siren and emergency lights prior to the accident and hit the ambulance's air horn several times and slowed his rate of speed as he approached the intersection. Thus, he had a qualified privilege to proceed through the red light ( see Vehicle and Traffic Law § 1104[b]; Kabir v. County of Monroe, 16 N.Y.3d 217, 920 N.Y.S.2d 268, 945 N.E.2d 461 [2011]; Turini v. County of Suffolk, 8 A.D.3d 260, 778 N.Y.S.2d 66 [2008], lv. denied 3 N.Y.3d 611, 786 N.Y.S.2d 814, 820 N.E.2d 293 [2004] ). There was no evidence that Ward acted with reckless disregard for the safety of others during the emergency operation of the ambulance ( see Vehicle and Traffic Law § 1104[e];
Saarinen v. Kerr, 84 N.Y.2d 494, 620 N.Y.S.2d 297, 644 N.E.2d 988 [1994]; Gervasi v. Peay, 254 A.D.2d 172, 679 N.Y.S.2d 45 [1998] ).
Plaintiffs failed to raise a triable issue of fact in opposition to the prima facie showing. In her EBT, Gordon testified that she did not see the ambulance prior to the accident. Her testimony concerning the lights and sirens was based on observations made after the accident. Thus, Gordon's statements that the ambulance's lights and siren were not activated prior to the accident were insufficient to defeat the motion of Lifeline and Ward ( see e.g. Phillips v. Bronx Lebanon Hosp., 268 A.D.2d 318, 320, 701 N.Y.S.2d 403 [2000] ).