Kent Frezzell, Appellant,v.City of New York, et al., Respondents.BriefN.Y.October 15, 2014To be Argued by: JAY L.T. BREAKSTONE (Time Requested: 30 Minutes) New York County Clerk's Index No. 116366/07 Qtnurt nf Appeals nft}fe §tate nf New lnrk ----+tt+---- KENT FREZZELL, -against- CITY OF NEW YORK and STEVE TOMPOS, BRIEF FOR APPELLANT PARKER WAICHMAN, LLP Attorneys for Appellant 6 Harbor Park Drive Appellant, Respondents. Port Washington, New York 11050 Tel.: (516) 466-6500 Fax: (516) 466-6665 Date Completed: January 13, 2014 TABLE OF CONTENTS Brief for Appellant Table of Authorities ............................................................................... i Preliminary Statement .. .. . . . .. .. . . . .. .. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . . . . . 1 Jurisdictional Statement ........................................................................ 4 Question Presented ................................................................................ 4 Statement of Facts ................................................................................. 5 Argument Point: MATERIAL QUESTIONS OF FACT PRECLUDED THE GRANT OFSU~ARYJUDGMENT AS A MATTER OF LAW .................................... 17 Conclusion ........................................................................................... 27 TABLE OF AUTHORITIES CASES Alvarez v. Prospect Hospital, 66 N.Y.2d 320 (1986) ...................................................................................... 17, 18 Badalamenti v. City of New York, 30 A.D.3d 452, 817 N.Y.S.2d 134 (2d Dep't 2006) .................... 16, 21 Burrell v. Ctiy of New York, 49 A.D.3d 482, 853 N.Y.S.2d 598 (2d Dep't 2008) .................... 16, 21 Corrallo v. Martino, 58 A.D.3d 792, 873 N.Y.S.2d 102 (2d Dep't 2009) ....................... 21 Derdiarian v. Felix Constructino Corporation, 51 N.Y.2d 808 (1980) .............................................. 25 Krulik v. County of Suffolk, 62 A.D.3d 669, 878 N.Y.S.2d 436 (2d Dep't 2009) ....................... 25 O'Connor v. City of New York, 280 A.D.2d 309, 719 N.Y.S.2d 656 (1st Dep't 2001) ...................... 24 Saarinen v. Kerr, 84 N.Y.2d 494 (1994) 2, 16,19,22 Stillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957) .............................................................................................. 18 Vega v. Restani Const. Corp., 18 N.Y.3d 499 (2012) ............................................................................................ 18 William J. J enach Estate Appraisers and Auctioneers v. Rabizadeh, 2013 N.Y. Slip Op. 08373, 2013 WL 6589051 (December 13, 2013) ..... 19, 23 Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985) .............................................. 17 Zuckerman v. City of New York, 49 N.Y.2d 557 (1980) ............................................................................................ 17 STATUTES General Municipal Law§ 205-e ............................................................................ 12 General Obligations Law§ 11-106 ....................................................................... 12 Vehicle and Traffic Law 1104 .............................................................................................................. 19, 22 1104(e) ........................................................................................................ passim ii COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------------- ){ KENT FREZELL, Appellant, -against- CITY OF NEW YORK and STEVE TOMPOS, Respondents. ------------------------------------------------------------------------- ){ BRIEF FOR APPELLANT Preliminary Statement This is an appeal by Appellant ["Plaintiff'] Kent Frezzell, from an order of the Appellate Division, First Judicial Department, which affmned the grant of summary judgment dismissing Plaintiffs action for personal injuries as against Respondents City of New York ["City"] and Steve Tomp- os ["Tompos"] [collectively "Defendants"]. [R 418]1 Plaintiff, a police 1Numbers in brackets, preceded by the letter "R", refer to the Record on Appeal. 1 officer, was injured when Tompos, himself a police officer and driving a marked police car, collided with Plaintiffs marked police car on a Manhattan street. Tompos was driving the wrong way on a one-way street at the time of the collision, but the Appellate Division found, as a matter of law, that Tompos' conduct did not rise to the level of recklessness required under Vehicle and Traffic Law ["VTL"] § 1104(e), thus excusing Tompos' actions. The majority decision of the Appellate Division is reported at 105 A.D.3d 620, 963 N.Y.S.2d 637 (1st Dep't 2013) ["Frezzell"]. Two justices of that court, however, disagreed with the majority, finding that issues of fact surrounding Tompos' testimony and that of other witnesses, including Tompos' partner, Richard Brunjes ["Brunjes"], precluded the entry of summary judgment. Frezzell at 621 [Freedman and Manzanet-Daniels, JJ., dissenting]. Based on the record, the dissenting justices found that Defen- dants had not satisfied the reckless disregard standard of Saarinen v. Kerr, 84 N.Y.2d 494, 501 (1994). The evidence at this stage of the proceedings left open questions which precluded summary relief as a matter of law, including those as to whether there was another another police vehicle which blocked 2 Tompos' view as he drove the wrong way into the one way street containing Plaintiffs police car, whether or not Tompos had activated his lights and siren, and whether Tompos had even seen the face of the traffic signal on the one-way street which he entered from the opposite direction of another one- way street, constituted recklessness under the Vehicle and Traffic Law. In addition, the facts raised the serious and unanswered question of whether or not Tompos' failure to notify either his own command or any other police units that he was leaving his precinct to insert himself into an already crowd- ed chase of a perpetrator on foot, was reckless disregard in and of itself under these particular circumstances. Frezzell at 622-623. The dissent believed, as is argued on this appeal, that on a motion for summary judgment, undecided facts and appropriate inferences precluded the grant of accelerated relief: Frezzell at 623. A jury could certainly fmd that entry into a one-way street in disregard of the traffic signal, in the absence of lights and siren and in the presence of an obstructing truck, when other units were already in pursuit of the suspect and defendant [Tompos] had under- taken on his own initiative to pursue the chase, constituted reckless disre- gard. 3 JURISDICTIONAL STATEMENT By order entered on April23, 2013, the Appellate Division, First Judicial Department, affirmed the grant of summary judgment to Defendants, dismissing the complaint. [R 418] Two justices filed a dissenting opinion and would have reversed Supreme Court and denied summary judgment. [R 420] Pursuant to CPLR 5601(a), Plaintiff seeks the review of this Court as a matter of right. QUESTION PRESENTED 1. Did Defendants properly eliminate all material questions of fact, sufficient so as to sustain summary judgment as a matter of law? The court below answered the question in the affirmative. 4 STATEMENT OF FACTS Frezzell and Morrison in Pursuit Plaintiff Frezzell and his partner, Morrison, were working the 4:00p.m. to Midnight shift on the night on September 20, 2006. [R 90] They were in their marked police car ["RMP"] in the area of the Douglas Houses, near Columbus Avenue and West 104th Street in Manhattan when they heard another officer over the radio transmit that he was in pursuit of a man in their vicinity. [R 90, 91, 140] Activating their emergency lights and siren, Frezzell and Morrison responded to the call, traveling with traffic across West 104th Street, an eastbound, one-way street. [R 141, 142] As they proceeded across West 104th Street, Frezzell saw another RMP headed the wrong way (north) on southbound Columbus A venue, just south of West 104th Street. [R 143] This RMP then made a left tum (westbound) into West 1 04th Street, against the flow of traffic, heading the wrong way at a high rate of speed on the one way street. /d.; [R 143] Frezzell didn't recall if that wrong-way RMP even had its emergency lights or siren on as it turned the wrong way into 1 04th Street. [R 94, 144] Frezzell tried to avoid the wrong- way RMP by taking whatever evasive action he could, pulling over to the 5 right as far as possible (there were cars parked on both sides of the street) and coming to a complete stop. [R 92, 143, 147] All was for naught, however, for the wrong-way RMP kept coming, quickly hitting Frezzell's car with great intensity in the middle of the driver's side (the point of impact reflecting Frezzell's evasive action in having moved to the right on the one way street.) [R 144] The Wrong-Way RMP Unbeknownst to Officers Frezzell and Morrison, there was another RMP participating in the chase, though without authorization and without any notification to fellow officers. Defendant Tompos, driving that RMP, and his partner, Officer Brunjes, heard the radio calls relating to the pursuit and made their own determination to become involved. [R 215] Tompos and Brunjes were not assigned to the area of the pursuit, but to the Central Park precinct, which covered only the area within the walled borders of the park and the streets adoining it. [R 211, 212] Their motor patrol was limited to within those walls. [R 212] Ignoring that limitation, when Tompos heard either a "1 0-13" or "10-85" call on his radio, he and Brunjes responded. [R 218] Tompos 6 claimed he could hear an officer on the radio "screaming" that he was in foot pursuit of a "man with a gun" at 1 OOth Street and Columbus A venue. [R 220] Tompos admitted that he knew from the radio that multiple police vehicles were already responding, so many, in fact, that he couldn't even discern which units they were from the many radio transmissions. [R 220] Nonethe- less, without advising any of those other pursuing officers, or even seeking authority from his own precinct command, Tompos left the Central Park Precinct on his own, determined to enter the chase anyway. [R 221, 225] Because of the lack of proper assignment or even notification, none of the pursuing officers would have any knowledge of Tompos' intentions, presence or position until he collided with Officer Frezzell's RMP on West 104th Street. [R 230] Tompos believed that his partner Brunjes should have been responsible for activating the emergency lights and siren as they began their chase, and that Brunjes had done just that. [R 221, but seep. 10, below] Tompos then headed west on 100th Street from inside Central Park, turning north, heading uptown against traffic on Columbus Avenue. [R 225, 226, 227] There were no intervening cross-streets as he headed uptown, as that 7 was where the housing project was located. [R 228] Tompos recalled that there were so many police vehicles parked on Columbus A venue responding to the radio call that he couldn't even stay in the left lane of Columbus A venue. [R 229] These vehicles included other RMPs, unmarked cars, Emergency Service Unit [ "ESU"] vehicles and even scooters. [R 230] Going the wrong way up Columbus A venue, Tompos could not even see the face of the traffic signal as he approached the comer of West 104th Street. [R 232] Nonetheless, Tompos made a left anyway, turning the wrong-way into the one-way street.2 [R 232] As he made the tum, Tompos claimed he saw only civilian vehicles parked on the street and did not see any ESU or other vehicle parked on the street as he came around the comer. [R 236] What he did see, however, was Frezzell's RMP. [R 234] According to Tompos, it was moving towards him at about the same speed as he was moving towards it, i.e., 20 m.p.h. [R 235, 236] Though he tried to avoid impact by turning his car to the righe, the cars collided about 3-4 car lengths 2There is no testimony by Tompos that he reduced speed as he turned into West 1 04th Street. 3Tompos would claim that he moved his car to the right because Frezzell was headed to Frezzell's own left, or directly toward's Tompos' side 8 from the comer and within 2-3 seconds from the first time that Tompos observed Frezzell's RMP on West 104th Street. [R 232, 234, 238] Since the presence of an ESU truck parked on the comer of West 1 04th Street as Tompos turned into the street would have precluded Tompos from being on the same, right side of the street as he had testified, the issue was pressed at Tompos' deposition. The official police accident report on the collision, signed by Tompos' direct supervisor, stated that the accident occurred when Tompos turned into West 104th Street and found an ESU truck parked on the right side of the comer, necessitating his going around the truck and, in the process, striking Frezzell's RMP. [R 234] Officers were responding to an active foot pursuit of a man with a gun. The pursuing officers on foot made sudden change of direction causing operator to go up a one way [street]. The officer did negotiate around a parked esu truck at which time he struck a housing4 rmp. of the one-way street. [R 240] 4Plaintiff and his partner were assigned to the NYPD' s Housing Bureau. [R 89] 9 [R 278] Tompos, however, didn't recall ever mentioning the ESU truck, didn't think an ESU truck was involved and didn't recall ever mentioning an ESU truck to his supervisor. [R 255] "I don't recall saying that," Tompos testified, "I don't know if there was one there or not." !d. When faced with the official police accident report, Tompos also had a problem recalling whether his siren was constantly on during his pursuit and at the point he turned into West 104th Street. [R 257, 258] The accident report indicated that the siren was not on constant. [R 257, 279] Tompos himself couldn't remember whether the siren was constantly on as he drove into West 104th Street. "I told you I really wasn't working the siren. My partner was. I had the hom siren." [R 257] Tompos conceded that the information on the accident report form indicated that it came from him. [R 258] The testimony of Tompos' partner, Brunjes, did not corroborate Tompos' recollections at all, though in other respects, Brunjes' recollections were crisp. He remembered that the radio report was of a man with a gun running through the housing project, chased by a Housing officer. [R 290] Using his actual memo book, Brunjes recorded the call at 10:10 p.m. as only 10 a "10-85", officer needs assistance, not a "10-13". [R 292] Brunjes explained that this "10-85" was the less intensive version of a "10-13" radio call, which infers a sense of immediacy and heightened need. [R 309, 31 0] Brunjes agreed that he and Tompos had no responsibilities outside of Central Park. [R 302] However, the chase seemed to be headed toward the park and they decided to move to cut it off and apprehend the perpetrator. [R 315] While Brunjes agrees that activating the emergency lights and siren might have been his job as the vehicle's recorder, he doesn't recall when he turned them on. [R 317, 318, 319] Nor does he recall if Tompos turned them on instead. [R 320] While he heard sirens on the street, he doesn't recall if they were of the many other vehicles responding or his own. [R 322] Consequently, Brunjes could offer no factual testimony on the question of whether his RMP had its lights and siren on at the time of the collision. As the pursuit continued, Brunjes knew that other vehicles were responding throughout the area. He saw them all over the streets. [R 330] However, Brunjes doesn't recall if he and Tompos ever radioed their own position to anyone. [R 331] Similarly, Tompos would never make any claim 11 that anyone was ever notified of their participation in the pursuit. When Brunjes was asked about the ESU truck on the corner of West 104th Street, at first he testified that he never saw an ESU truck. [R 349] However, when shown the police accident report filed by his supervisor, Brunjes agreed that there indeed might have been a ESU truck on West 104th Street when he and Tompos turned into the one-way street [R 365] and that Tompos might have had to move out of the way of the ESU truck as he entered the street. [R 365] Brunjes confirmed that he had spoken to his supervisor and given him his version of the facts at the time so that the supervisor could fill out the report. [R 366] That report would refresh Brunjes' recollection as to the ESU truck. [R 367] Ultimately, Brunjes couldn't even recall which side of West 104th Street his own RMP was on as it came around the corner. [R 349] The Decisions Below On this evidence, Supreme Court granted Defendants' motion for summary judgment, finding that there were no material questions of fact extant. [R 6] Though General Municipal Law § 205-e and General Obliga- tions Law § 11-106, granted a police officer a right of action in a personal injury matter, VTL § 1104(e) barred any liability on Defendants' part in the 12 absence of a finding of "reckless disregard." [R 7] Supreme Court found that this was a case of "mere negligence" as two police vehicles, each in pursuit of the same suspect and the officer pursuing him, saw each other "and tried to avoid an accident, but could not because of the width of the roadway [which] did not permit sufficient room to avoid contact." [R 6, 7] The court also found that the facts showed that "[b ]oth drivers allege that they turned on their sirens and dome roof lights." [R 6] This was not reckless conduct under the Vehicle and Traffic Law. [R 7] The Appellate Division, First Department agreed, but not without two justices dissenting. Frezzell at 620 [majority] and 621 [dissent]. While the majority believed that Tompos "did not act in 'reckless disregard for the safety of others' while operating his vehicle in the wrong dierction on a one-way street" [Id. at 620] that finding was based on facts which were seriously at issue and quite unresolved in the record. Chief among these was the majority's conclusion that the record unquestionably supported Tompos' use of emergency light and siren and that these "had been activated prior to 13 the accident."5 /d. In fact, Tompos testified that he might have only used his own hom-activated siren, which was not constant, and even then never testified as to precisely when it was that he turned that siren on or off as he drove the wrong way down the one-way street.6 [R 257] The dissent, however, vehemently disagreed. If anything, the record demonstrated just the opposite. While Frezzell "could not recall whether the [Tompos] vehicle had its emergency lights or siren on as it turned into 104th Street, heading the wrong way[,]" neither could Tompos' partner, Brunjes. Frezzell at 621, 621 at n.1. Tompos himself could only recall that '"the sirens were on'," but didn't know in what manner Brunjes 5The majority also believed that Defendants had made an uncontrovert- ed, prima facie showing that Tompos was only going 10 miles per hour as it turned the wrong way into West 104th Street, based on Brunjes' testimony. Frezzell at 620. However, that is not what the record revealed. Instead, Brunjes had no idea how fast the RMP was going when it entered West 104th Street. It could have been 20-25 miles per hour [R 371] or perhaps 30 miles per hour. [R 370 (Tompos reduced speed 10 miles per hour from their speed on Columbus Avenue, which itself could have been "Estimated, 30, 35, 40."] In the end, Brunjes testified that he was "not that good of a guesstimate of speed." [R 3 71] Tompos himself never testified as to his speed as he turned the wrong way down West 104th Street. 6Tompos' hom-activated siren, of course, would not have activated the emergency lights on his RMP, which would have been particularly useful as the collision occurred at night. 14 was working the siren, "unsure whether operation of the siren was manual or automatic." /d. at 621.7 The majority opinion was totally silent as to the presence of the ESU truck that was parked on West 104th Street, as specified in the official police accident report. Frezzell at 622. However, that accident report plainly placed the ESU truck in the proximate cause chain, as it required Tompos to go around the truck, which is when he struck Plaintiffs RMP. /d. "At his deposition, however, Tompos did not recall an ESU truck at the scene or reporting same to his supervisor." /d. 8 Under Saarinen, the dissent continued, "reckless disregard" meant that an officer had "intentionally committed 'an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make 7The record, of course, would not only support the dissent's recollec- tion of the testimony, but emphasize the disparity it had highlighted. Brunjes would never recall turning the lights and siren on [R 317, 318, 319] and never recall Tompos turning them on either. [R 320] There were so many sirens on the street, Brunjes claimed he didn't known if he was hearing them or his own. [R 322] 8The record would actually demonstrate that it was Brunjes who told the supervisor about the ESU truck [R 365, 366 and 367] and that Tompos might have, indeed, had to move out of the way of the ESU truck as he entered the street. [R 365] 15 it highly probable that harm would follow'." Frezzell at 622, quoting Saarinen v. Kerr, 84 N.Y.2d at 501. Such questions were presented here, where Defendants had failed to eliminate questions as to whether Tompos had entered the one-way street in the wrong direction despite an ESU truck blocking Tompos' view of the intersecting street; whether or not Tompos had his lights and siren activated; whether Tompos entered the intersection without ever seeing the face of the traffic signal; and whether any of these acts, either alone or together, "when other units were already in pursuit of the suspect and defendant [Tompos] had undertaken on his own initiative to pursue the chase, constituted reckless disregard." Frezzell at 623. The dissent saw a distinct resemblance in the facts of this case to those in Burrell v. City of New York, 49 A.D.3d 482, 853 N.Y.S.2d 598 (2d Dep't 2008) [City failed to meet burden in demonstrating lack of reckless conduct where police vehicle, with lights and siren, did not slow when approaching intersection and had obstructed view of intersection due to parked vehicle] and even closer to those in Badalamenti v. City of New York, 30 A.D.3d 452, 817 N.Y.S.2d 134 (2d Dep't 2006) ["the record indicated that the officer did not stop at the stop sign controlling the intersection, that his 16 view was partially blocked by a parked truck, and a question existed as to whether the vehicle's turret lights and siren has been activated prior to entering the intersection." Frezzell, 105 A.D.3d at 623]. /d. at 622-623. Upon this evidence, the dissent determined that a jury could certainly deter- mine that Tompos' conduct entering into and participating in the chase constituted reckless disregard for the safety of others. /d. at 623. Upon the opinion of the two dissenting justices below, the within appeal was taken. [R 416] ARGUMENT POINT MATERIAL QUESTIONS OF FACT . PRECLUDED THE GRANT OFSUMMARYJUDGMENT ASAMATTEROFLAW The burden upon a defendant seeming summary judgment is well-known and has been stated by the Court in numerous cases. See, e.g., Alvarez v. Prospect Hospital, 66 N.Y.2d 320, 324 (1986), citing, in tum, Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985), Zuckerman v. City of New York, 49 N.Y.2d 557,562 (1980) and 17 Stillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957). The Court has consistently reaffirmed its power to review the grant of summary judgment in order to confirm that the high standard for such accelerated relief has indeed been met. This appeal comes to us in the posture of a summary judgment motion, thus we must consider whether Rabizadeh has met his burden to establish "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hosp . . , 68 N.Y.2d 320, 324 [1986]; see also CPLR 3212[b] ). This burden is a heavy one and on a motion for sum- mary judgment, facts must be viewed in the light most favorable to the non-- moving party (Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503 [2012] (ci- tations and quotations omitted). Where the moving party fails to meet this bur- den,summaryjudgmentcannotbe granted, and the non-moving party bears no burden to otherwise persuade the Court against summary judgment (id.). Indeed, the moving party's failure to make a prima facie showing of enti- tlement to summary judgment requires a denial of the motion, regardless of the sufficiency of the opposing papers 18 (id. [citations and quotations omitted]). William J. Jenach Estate Appraisers and Auctioneers, Inc. v. Rabizadeh, 2013 N.Y. Slip Op. 08373 at 5, 2013 WL 6589051 (December 17, 2013). On the record here, there is scarcely any critical fact in the recklessness rubric of Saarinen which is not subject to dispute. Saarinen sets the stage for summary dismissal of injuries resulting from the operation of emergency vehicles, for while recognizing that VTL § 1104 is the "touch- stone" of such analysis, it nonetheless qualifies such "privileged operation of an emergency vehicle" with the proviso that the privilege only applies "as long as certain safety precautions are observed." Saarinen at 499. Those precautions against abuse of the privilege are contained in VTL § 11 04( e): VTL § 1104(e). The foregoing provisions shall not re- lieve the driver of an authorized emer- gency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions pro- tect the driver from the consequences of his reckless disregard for the safety of others. 19 Consequently, on a motion for summary judgment, a defendant must be prepared to show under VTL § 11 04( e) that there is no question that the driver of the police vehicle was (i) driving with due regard for the safety of others, and (ii) was not driving with reckless disregard for the safety of others, as a matter of law, a showing which the Court conflated to the single "reckless disregard for the safety of others" standard in Saarinen. Saarinen at 502. That "reckless disregard" standard "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 [citations omitted]." /d. at 501. The dissent recognized multiple issues in Defendants' proof which gave rise to material questions of fact as to whether or not Tompos was operating his RMP with "reckless disregard for the safety of others" on the night that he injured Plaintiff. These included, disregarding traffic signals, proceeding while unable to see traffic signals, not using lights or siren, proceeding with vision and driving obstructed by an ESU truck, and entering the pursuit without authorization and with full knowledge of other 20 vehicles in pursuit - - but never advising the other pursuing vehicles of his own presence. Frezzell at 623 . None of these situations is unusual and each, even alone, may jeopardize the privileged operation that VTL § 1104 provides. In Corrallo v. Martino, 58 A.D.3d 792, 873 N.Y.S.2d 102 (2d Dep't 2009), appellants argued that their police officer was operating has police car during an emer- gency operation and was not reckless in entering an intersection against a steady red light. In affirming the denial of summary judgment, the court noted that appellants had "failed to eliminate questions of fact" as to their officer's conduct at the intersection. 58 A.D.3d at 793. In Burrell v. City of New York, cited by the dissent (Frezzell at 622) the question of whether or not an officer's view of an intersection was obstructed by a parked vehicle precluded summary judgment. 49 A.D.3d at 483. In Badalamenti v. City of New York, the court held that questions of fact on both of these two issues, i.e., an obstructing truck and whether the defendant officer activated his turret lights and siren, mitigated against the the grant of summary judgment. 30 A.D.3d at 453. Contrary to the majority's belief, none of these factual issues are 21 confirmed by the record and each remains an open question for the jury. Compare, Frezzell at 620. While the majority might view the record as containing no evidence "that Tompos' view of traffic was obstructed," the record contains the official police accident report - - with information pro- vided by Brunjes himself, an eyewitness - - that confirms the obstructing ESU truck at the very beginning ofTompos' entry the wrong way into the one-way street. By the same token, to suppose that "evidence that his [Tompos'] siren was not on constantly did not rise to the level of conduct requried to meet the 'reckless disregard' standard" of Saarinen is contrary to the record and in derogation of the case law. /d. at 621.. Having failed to notify any of the myriad of other pursuing vehicles that he was involved in the chase; having failed to receive authorization to join the melee; and having failed to let anyone know where he was, Tompos' inability to recall if or even when he used his siren is fatal to Defendants' burden. Without prima facie proof as to the specific use of lights and siren, and obstructed by the ESU truck described by his own partner in the police accident report, Tompos is no more entitled to the privileged operation of VTL § 1104 than the police officer in Badalamenti. 22 While the Court has directed that on a motion for summary judgment, the "facts must be viewed in the light most favorable to the non- moving party" [William J. Jenack Estate, supra.], the majority has done just the opposite. While "not[ing] in particular that Tompos' partner testified that Tompos reduced the vehicle's speed to 10 miles per hour as it turned into the street where the accident occurred," the court below, in the same breath, rejected as "conclusory and speculative" Plaintiff's testimony that Tompos was "driving at a 'high' rate of speed." Frezzell at 620. The reason, the court offered, was that Plaintiff was "admittedly unable to estimate" Tompos' speed. Id. But so was Brunjes unable to estimate the speed of his own (Tompos') vehicle. Putting aside whose burden it was to support that issue on this motion, as well which party was entitled to have disputed facts determined in its favor, Brunjes also admitted that he was a terrible estimator of speed. In his own words, Brunjes admitted that he was "not that good of a guesstimate of speed" [R 371] and that while Tompos reduced his speed when he turned into the wrong-way street by 10 miles per hour, that reduc- tion could have been from any speed between 30-40 miles per hour. [R 370] 23 A jury could find on this testimony alone that Tompos was going two or three times the speed which the majority found so plainly proven by Defen- dants. Adding to these questions of fact are those relating to the entry into a one-way street, permitted under VTL § 1104(e) so long as it is not accomplished with reckless disregard of the safety of others. In 0 'Connor v. City of New York, 280 A.D.2d 309,719 N.Y.S.2d 656 (1st Dep't 2001), the court held that entering a one-way street against traffic without the benefit of lights or siren and without slowing down, would support a finding of reckless disregard under the statute and sustain a jury's verdict under GML 205-e. A jury could well-find that under the particular circumstances of this case, with knowledge that the area was flooded with other police units in pursuit, just as they were, and violating vehicle and traffic laws, just as they were too, Tompos' entry into West 104th Street in the manner he elected was particu- larly reckless. The obstructing ESU truck, the absence of lights and siren, and the entry into a one-way street without slowing down to a safe speed, are all critical facts in assessing whether or not Tompos acted in reckless disregard 24 for purposes of VTL § 1104(e), i.e., intentionally committing an act of an unreasonable character in disregard of an known or obvious risk that was so great as to make it highly probable that harm would follow. Krulik v. County of Suffolk, 62 A.D.3d 669, 878 N.Y.S.2d 436 (2d Dep't 2009). It is not accidental that questions of fact belong to juries and that issues of causation are left to them to resolve. Derdiariarrv. Felix Constructino Corp., 51 N.Y.2d 808 (1980). It is only by judging credibility that the truth may be told. Questions relating to whether two cars on a one- way street could have avoided impact by one altering its course or the other, are jury questions. In the case at bar, if there were not already numerous unresolved questions of fact, there is even disagreement as to whether or not Plaintiffs car was stopped when it was hit by Tompos' car. Plaintiff testified that his RMP was stopped when impacted by Tompos' RMP. Tompos disagrees. Therefore, the movement of Plaintiffs RMP is critical to the issue of reckless disregard as it shortens the length of time of impact. If Plaintiff was not headed towards Tompos at the same speed that Tompos was headed towards Plaintiff, as Tompos testified, then Tompos would have had twice as much time to avoid the accident, though he did not or could not. 25 Viewing the evidence in the light most favorable to Plaintiff, material factual questions relating to reckless disregard precluded summary judgment, as the dissent recognized. Substantial credibility issues abound between the testimony of Plaintiff and Tompos, while those same credibility issues even extend to the testimony of Tompos and his own partner, Brunjes. Only a jury may sort out these issues and the grant of summary judgment was in violation of the standards set by the Court. 26 CONCLUSION The order should be reversed and this matter returned to Supreme Court for trial. Jay L. T. Breakstone, Brett A. Zekowski, Of counsel. January 13, 2014 Respectfully submitted, PARKER WAICHMANLLP Attorneys for Appellant 6 Harbor Park Drive Port Washington, New York 11050 ( 516) 466-6500 By: ~yqT~ 27