Kent Frezzell, Appellant,v.City of New York, et al., Respondents.BriefN.Y.October 15, 2014VICTORIA SCALZO Phone: (212) 356-0856 Fax: (212) 356-2509 vscalzo@law.nyc.gov August 20, 2013 Hon. Andrew W. Klein Chief Clerk of the Court New York State Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 Re: Frezzell v. City of New York APL-2013-00118 Dear Mr. Klein: I am an Assistant Corporation Counsel in the office of Michael A. Cardozo, Corporation Counsel of the City of New York, attorney for defendants- respondents (“defendants”) City of New York (the “City”) and Police Officer Steve Tompos. On plaintiff’s appeal to this Court, and in response to this Court’s directive, defendants submit this letter brief, pursuant to section 500.11 of this Court’s Rules of Practice. Pursuant to section 500.11(f) of those Rules, defendants reserve any arguments made in the Appellate Division, First Department, that are not addressed here. Plaintiff Kent Frezzell, a police officer employed by the New York City Police Department (“NYPD”), seeks an award of damages for personal injuries resulting from a motor vehicle accident on September 20, 2006. The accident involved two police vehicles, of which plaintiff and Officer Tompos were the drivers. Both officers and their respective partners were responding to the same police radio transmission -- a fellow police officer’s call for assistance in the pursuit of a man with a gun. Plaintiff’s action against the City and Officer Tompos Hon. Andrew W. Klein Page 2 was brought pursuant to General Municipal Law § 205-e, and is predicated on an alleged violation of Vehicle and Traffic Law (“VTL”) § 1104. Plaintiff appeals from an order of the Appellate Division, First Department, entered on April 23, 2013. See Frezzell v. City of New York, 105 AD3d 620 (1st Dept. 2013). The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, New York County (Wright, J.), entered April 14, 2011, which granted defendants’ motion for summary judgment dismissing the complaint. PROCEDURAL HISTORY AND FACTS A. The Pleadings On December 10, 2007, plaintiff commenced this action against the City and Police Officer Steve Tompos, asserting three causes of action (53-63).1 The first alleged that the accident was caused by Officer Tompos’s negligent operation of his vehicle (55-60, ¶¶ 1-43). The second alleged that the action fell within the scope of General Obligations Law § 11-106 (60, ¶¶ 44-46). The third alleged a claim based on General Municipal Law § 205-e, in that defendants allegedly violated various provisions of the New York City Administrative Code, the New York City Charter, and the Rules and Regulations of the City (60-62, ¶¶ 47-52). The City served a verified answer on February 12, 2012 (64-67), and the City and Officer Tompos served an amended answer on June 30, 2008 (69-73). Plaintiff’s bill of particulars, dated August 7, 2008 (75-81), asserted, as predicates for plaintiff’s GML § 205-e claim, that defendants violated VTL §§ 1104 and 1144(a)(b) [sic] (80, ¶ 24). In paragraph 15 of his bill of particulars, plaintiff presented a lengthy narrative description of the actions and inactions of Officer Tompos that allegedly caused or contributed to the accident (79). Those alleged actions and inactions all pertained to Officer Tompos’s operation of his vehicle (id.). B. The Testimony of the Police Officers At plaintiff’s May 29, 2007 examination pursuant to GML § 50-h (83- 128) and at his examination before trial, conducted on January 20, 2009 (129-197), he testified as follows. At approximately 10:00 p.m. on September 20, 2006, he responded to a radio transmission from another police officer in pursuit of a man 1 Unless otherwise indicated, parenthetical references are to pages in the Record on Appeal. 2 Hon. Andrew W. Klein Page 3 with a gun near the Douglas Houses, a public housing development (89-92, 140- 141). Plaintiff, the driver of a marked NYPD vehicle, proceeded to travel eastbound on West 104th Street between Amsterdam and Columbus Avenues (90- 91, 138). West 104th Street is a one-way street, with traffic flowing from west to east, and there was room “for two cars side by side” (90, 141). Vehicles were parked on both sides of the street, but no other vehicles were then being driven on that stretch of roadway (92-93). As plaintiff neared the intersection of West 104th Street and Columbus Avenue, he collided head-on with another marked police car traveling in the opposite direction, which had turned onto West 104th Street from Columbus Avenue (90-91, 93, 138, 143). Plaintiff first noticed the other NYPD vehicle several seconds prior to impact while it was traveling north, against the permitted direction of traffic, on Columbus Avenue (93-94, 143). There was a traffic control light at the corner, but plaintiff did not recall in which direction the light was red or green (149). Just prior to impact, plaintiff pulled to the right and stopped his vehicle, “hoping to avoid impact” (143). Plaintiff testified variously that the other vehicle was traveling “at a high rate of speed” (id.), and that he could not “say exactly how fast it was going,” except that “[i]t was traveling faster than I was going because I was stopped prior to that. I can’t say what it was doing” (147). Plaintiff testified that his lights and sirens were on prior to the accident (91, 142). He was unable to recall whether the other NYPD vehicle had its lights and sirens on (94, 144). On January 20, 2009, Officer Tompos testified at an examination before trial (198-274). On the date of the accident, he was conducting routine patrol with his partner, Police Officer Brunjes, in a radio motor patrol car (“RMP”) (214-215). Officer Tompos was the driver of the RMP and Officer Brunjes was the recorder, or passenger (215). The RMP was a marked patrol car equipped with emergency lights affixed to the roof as well as alternating headlights, brake lights and tail lights (216-217). Officer Tompos testified that while he was observing traffic from the Central Park entrance at 100th Street and Central Park West, he received a radio transmission, consisting of a “1013” or “1085” announcement by “an officer screaming into the radio” that he “was in a foot pursuit running after a man with a gun,” in the “projects” (218-220). Officer Tompos then heard several transmissions on the police radio, some of which were from other units responding to the scene to render assistance, and others were from officers transmitting the location of the foot pursuit as it progressed (220). Officer Tompos then 3 Hon. Andrew W. Klein Page 4 “proceeded to the location,” driving west on 100th Street, north on Columbus Avenue, and west on 104th Street (221, 225). “Seconds” after Officer Tompos heard the radio transmission, Officer Brunjes activated the RMP’s lights and sirens (221, 223). Also seconds after the radio transmission, Officer Brunjes pressed the master switch, which activates all of the RMP’s emergency lights, consisting of roof lights and alternating headlights (223). Officer Brunjes used the radio to inform other units in the area that they were responding to the call (230-231, 245-246). It took no longer than two to three minutes to arrive at Columbus Avenue and 104th Street, traveling in the opposite direction to traffic on West 100th Street, where traffic flows one-way in an eastbound direction, and on Columbus Avenue, where traffic flows one way in a southbound direction (226-227). Columbus Avenue has approximately three lanes for moving traffic, and Officer Tompos drove northbound in the western-most traffic lane, changing lanes at one point because of other police vehicles parked on Columbus Avenue (228-229). When Officer Tompos reached West 104th Street, he saw the traffic light on the corner, but was unable to see what color it was at the time (231-232). He turned left, or westbound, onto West 104th Street (232). Officer Tompos drove approximately three to four car lengths, closer to the right-hand side of West 104th Street, at which point his vehicle collided with the RMP driven by plaintiff (232- 233, 237). Civilian vehicles were parked along both sides of the roadway, and Officer Tompos did not see any NYPD Emergency Services Unit (“ESU”) truck or other RMPs on West 104th Street (236-237). Officer Tompos first noticed the RMP driven by plaintiff approximately two to three seconds before the collision, at which point he was traveling approximately 15 to 20 miles per hour (234-235, 237). The other RMP appeared to be traveling at approximately the same speed (235-236). Officer Tompos’s emergency lights and sirens were still activated at the time of impact (234). Officer Tompos observed that the RMP driven by plaintiff had its emergency roof lights on, but, due to the noise from his own RMP’s siren, he was unable to determine whether plaintiff’s siren was also on (237). When Officer Tompos first observed the approaching RMP driven by plaintiff, it was traveling on the north side of West 104th Street, which was the same side of the street on which Officer Tompos was driving (240). He saw the other vehicle turning to Officer Tompos’s left, and he attempted to evade the oncoming vehicle by turning his RMP to the right (239-240). 4 Hon. Andrew W. Klein Page 5 Officer Tompos’s witness statement indicated that at the time of the accident, he was “pursuing a man with a gun” (275). An NYPD Unusual Occurrence Report stated that “[b]oth RMP’s were utilizing emergency lights and sirens but were unable to avoid a collision” (276-277). An NYPD accident report, signed by a Lt. Thomas Milano, stated (279): 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 housing [RMP]. Officer Tompos did not recall mentioning an ESU truck to an investigating police officer, but testified that “[t]o the best of [his] knowledge, an ESU truck was not involved” in the accident (255). He testified that he did not know why a box on the accident report was checked indicating that his siren was not on “constant,” and that, although he was working the “horn siren,” his partner was “working the siren” (257). On April 6, 2009, Police Officer Richard Brunjes testified at an examination before trial (280-389). Prior to the accident, he and Officer Tompos had been performing routine patrol (298, 303). Referring to his memo book, Officer Brunjes testified that at 10:10 p.m., they received a “1085,” a code for “officer in need of assistance” (291-292, 310). Approximately five minutes elapsed between their receiving the call and the accident (311). Officer Brunjes heard over the radio that an officer was chasing a man with a gun, eastbound through the housing projects at “approximately 100 to 104th Street and Columbus” (313, 324). Officer Brunjes heard other radio responses to the call, informing them that the pursuit was headed towards Central Park (314-315). The officers discussed the transmissions and responses, as they attempted to “cut off the chase” and “catch the guy with the gun” (315). Officer Brunjes was unable to recall whether he put the RMP’s lights and sirens on, but testified that at the time, there were sirens everywhere coming from all directions (317-318, 322). The officers traveled from “100th Street and Central Park West to 100th Street and Columbus to 104th and Columbus” (323). While he and Officer Tompos were traveling on Columbus Avenue, Officer Brunjes observed other police vehicles responding to the same call for 5 Hon. Andrew W. Klein Page 6 assistance (330, 344). The traffic conditions were light (351), and the highest rate of speed their RMP reached on the way to the location was 30, 35, or 40 miles per hour (370). As Officer Tompos approached the intersection of West 104th Street and Columbus Avenue, he reduced the RMP’s rate of speed to approximately 10 miles per hour to negotiate the turn (370). At the corner of West 104th Street and Columbus Avenue, only seconds before the collision occurred, Officer Brunjes first saw the other RMP traveling towards them about 15 feet or two car lengths away (337, 341). Officer Tompos was driving at approximately 10 to 20 miles per hour (340, 371). Officer Tompos attempted to make an evasive maneuver and turn away, but there was not enough time to avoid collision (349). Officer Brunjes testified that he did not see an ESU vehicle in the area, but several other police vehicles were in the area (343-344). In response to further questioning based upon the accident report, Officer Brunjes testified that although the report so stated, he did not recall whether an ESU vehicle was parked in the area, or whether Officer Tompos had driven around it (365). C. Defendants’ Motion for Summary Judgment On November 18, 2010, defendants moved for summary judgment, arguing that (i) a negligence claim was barred by the firefighter’s rule; (ii) plaintiff’s General Municipal Law § 205-e claims relying on the specified Administrative Code and Charter sections were untenable because the sections cited as predicates did not pertain to the subject matter of the lawsuit; (iii) as to any alleged violation of the VTL, the reckless disregard standard of VTL § 1104 applied, and, as a matter of law, Officer Tompos was not reckless in his operation of his vehicle (8-37). Plaintiff, opposing the motion, conceded that the cited Administrative Code and Charter sections were inapplicable, but argued that (i) VTL § 1104, and § 1144, which latter section requires that a vehicle keep to the right upon the immediate approach of an authorized emergency vehicle, were appropriate statutory predicates for a suit pursuant to General Municipal Law § 205-e; (ii) there was a triable question of fact as to whether Officer Tompos drove in “an extended pattern [of] reckless disregard” for the safety of others; and (iii) a triable question of fact remained as to whether Officer Tompos had pulled 6 Hon. Andrew W. Klein Page 7 fully over to the right upon the approach of plaintiff’s emergency vehicle.2 Defendants submitted a reply affirmation (404-413). DECISION AND ORDER OF THE SUPREME COURT The Supreme Court granted summary judgment to defendants and dismissed the complaint (5-7). The Court noted that both police vehicles were responding to a fellow-officer’s call stating that he was in pursuit of a man wielding a gun (6). The Court observed that both drivers claimed to have had their sirens and dome lights activated, that the vehicle driven by Officer Tompos was proceeding against the flow of traffic and that, although both drivers attempted to avoid collision, the vehicles hit almost head-on, two to three car lengths into the block (6). The Court also emphasized that the police vehicles were each traveling at 15 to 20 miles per hour, and that their operators were looking for an armed suspect or a fellow police officer in peril (7). The Court also reasoned that although General Municipal Law § 205-e and General Obligations Law § 11-106 give police officers some rights of action in personal injury matters, VTL § 1104(e) “bars 20-20 hindsight [] in analyzing an officer’s spur of the moment reaction to an exigent situation” (7). In those situations, there must be a showing of recklessness, which requires a finding that (id.): 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 disregard of the outcome. The Court concluded that, “[a]t best, the plaintiff has alleged mere negligence, which under the Vehicle and Traffic Law is not sufficient in this case” (7). THE PARTIES’ SUBMISSIONS IN THE APPELLATE DIVISION Plaintiff appealed to the Appellate Division, First Department. In his main brief in that Court, plaintiff argued, as he had in the Supreme Court, that 2 On appeal, plaintiff abandoned his claim that VTL § 1144 was an appropriate statutory predicate for his GML § 205-e claim. 7 Hon. Andrew W. Klein Page 8 questions of fact precluded the granting of summary judgment to defendants (App. Br. pp. 10-13). The alleged questions of fact he identified were whether Officer Tompos’s view of the intersection was blocked by an ESU truck parked at the corner of 104th Street; whether the lights and sirens on Officer Tompos’s vehicle had been on or off at the time of the accident; and whether it was reckless for Officer Tompos to enter 104th Street against traffic (id.). In response, defendants argued, for the same reasons they had articulated in the Supreme Court, that the Supreme Court had properly granted defendants summary judgment due to plaintiff’s failure to raise a triable issue of fact as to any alleged recklessness in Officer Tompos’s operation of his vehicle, including driving against the flow of traffic on West 104th Street (Resp. Br. pp. 13- 24). In reply, plaintiff argued, for the first time, that “Officers Tompos and Brunjes could never even affirmatively demonstrate that they had ever bothered to advise other police officers of where they were” (App. Reply Br. p. 5). Plaintiff argued that by virtue of the alleged failure of Officers Tompos and Brunjes to advise their supervisors of their intent to respond to their fellow-officer’s call for assistance, defendants had failed to demonstrate, as a matter of law, that Officer Tompos had not operated his vehicle in a reckless manner (App. Reply Br. p. 7-8; 9). Plaintiff speculated that “[h]ad these officers kept supervisors aware of their location as they careened about the streets of upper Manhattan, they might have been told of the location of other officers -- such as Officer Frezzell -- and not endangered their safety” (App. Reply Br. p. 7). Plaintiff argued that “[t]he failure to advise and its effect” constituted “a material question of fact which remains unrequited [sic]” (id.). THE DECISION AND ORDER OF THE APPELLATE DIVISION The Appellate Division affirmed the Order of the Supreme Court, finding that defendants had established their entitlement to summary judgment as a matter of law. 105 AD3d at 620. The Court found that “defendants’ proof established that defendant Steve Tompos . . . did not act in ‘reckless disregard for the safety of others’ while operating his vehicle in the wrong direction on a one- way street” (id.). The Court noted that Officer Tompos had testified that his vehicle’s emergency lights and siren had been activated prior to the accident, and that he had veered to his right in an attempt to avoid impact (id.). The Court further noted Officer Brunjes’s testimony that Officer Tompos had reduced his speed to 10 miles per hour as he turned onto the street where the accident occurred 8 Hon. Andrew W. Klein Page 9 (id.). The Court characterized plaintiff’s testimony that Officer Tompos’s vehicle had been moving at a “high” rate of speed as “conclusory and speculative,” particularly because plaintiff also admitted that he was unable to estimate the speed of Officer Tompos’s vehicle (id.). The Court determined that in opposition to defendants’ motion, plaintiff had failed to raise a triable issue of fact. 105 AD3d at 621. The Court further determined that there was no evidence that Officer Tompos’s view of traffic had been obstructed, and that “evidence that his siren was not on constantly did not rise to the level of conduct required to meet the ‘reckless disregard’ standard” (id.). The dissenting justices were of the opinion that questions of fact precluded summary dismissal of the complaint. The issues cited included (1) “whether an ESU vehicle blocked Tompos’s view of the intersecting street,” and (2) “whether or not the lights and siren on the Tompos vehicle had been activated.” 105 AD3d at 622. The dissenting justices were of the view that (105 AD3d at 623): a jury could certainly find 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 had undertaken on his own initiative to pursue the chase, constituted reckless disregard. In reaching that conclusion, the dissenting justices stated, inter alia, that “[t]he police report indicates that an ESU vehicle obstructed Tompos’s view of the intersection” and that “Tompos admitted that he and his partner had never been directed by any superior to respond to the call and admitted that they did so without advising command of their intentions or their position, notwithstanding the fact that multiple units were responding to the call.” 105 AD3d at 621, 622. ARGUMENT A. This Court Lacks Jurisdiction to Hear this Appeal and, therefore, the Appeal Should be Dismissed. Plaintiff claims that CPLR 5601(a) provides a jurisdictional basis for this appeal. CPLR 5601(a) requires that, at the Appellate Division, there be a “dissent by at least two justices on a question of law in favor of the party taking such appeal.” The two justices dissenting in this case would have reversed the order of the Supreme Court on the ground that purported questions of fact 9 Hon. Andrew W. Klein Page 10 precluded the grant of summary judgment to defendants. Defendants submit that since the two-Justice dissent was not on a question of law, this Court is without jurisdiction to decide the appeal. Accordingly, the appeal should be dismissed. See Gravius v. County of Erie, 17 NY3d 896, 897 (2011) (upon this Court’s review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals, appeal was dismissed, with costs, on the ground that the two-Justice dissent at the Appellate Division was not on a question of law). Indeed, in his July 19, 2013 letter to this Court, plaintiff argued that “material questions of fact abound,” and that “unresolved questions of fact” precluded the granting of summary judgment in this case (App. Letter brief, p. 2, 4). Plaintiff does not suggest that the dissent at the Appellate Division was on a question of law. In any event, as discussed below, the issues identified by the dissent at the Appellate Division are not genuine triable issues of fact and/or were not preserved for this Court’s review. B. The Appellate Division Correctly Affirmed the Supreme Court’s Finding that Defendants Established Their Entitlement to Summary Judgment and that Plaintiff Failed to Demonstrate the Existence of a Triable Issue of Fact. If this Court does not dismiss the appeal for lack of subject matter jurisdiction, this Court should affirm the order of the Appellate Division. The Appellate Division correctly determined that plaintiff failed to raise a triable issue of fact regarding Officer Tompos’s alleged reckless operation of his vehicle. At the time of the accident, Officer Tompos was operating a police vehicle, which constitutes an “authorized emergency vehicle,” and that vehicle was engaged in an “emergency operation” as those terms are defined, respectively, in VTL §§ 101, 114-b and 132-a (see Resp. Br. in the Appellate Division, p. 15). Indeed, Officer Tompos was operating an authorized emergency vehicle which was engaged in “[p]ursuing an actual or suspected violator of the law, or responding to . . . [a] police call . . . or other emergency.” VTL § 114-b. Thus, the Appellate Division correctly determined, as plaintiff concedes, that the applicable standard of care is “reckless disregard.” The dissenting Justices were also in agreement with the majority on that point, but believed that questions of fact remained as to whether Officer Tompos had acted with “reckless disregard” in driving against the flow of traffic on West 104th Street. However, as detailed below, the majority opinion correctly determined, as a matter of law, that Officer Tompos did not operate his vehicle in a reckless manner. 10 Hon. Andrew W. Klein Page 11 The evidence is uncontradicted that, as they drove alongside the housing project, all four officers, in the two RMPs, were keeping a watch out for a suspect with a gun, and a fellow officer in distress. It is uncontradicted that Officer Tompos slowed his vehicle to 10 miles per hour as he turned onto West 104th Street, and that he attained a speed of no more than 20 miles per hour after making the turn (340, 370, 371). It is also uncontradicted through all of the witnesses’ testimony and in the various police reports, that both vehicles had their lights and sirens on, although, according to a checked box in a police report, Officer Tompos’s siren may not have been on a “constant” setting (94, 144, 221, 223). Nonetheless, as one officer testified, with all vehicles’ sirens activated, it was difficult to hear another vehicle’s siren (237). Plaintiff, himself, did not recall whether Officer Tompos’s lights or siren were on (94, 144). Notably, plaintiff’s testimony established that his own view to Columbus Avenue was unimpeded, and he conceded that, prior to the collision, he saw Officer Tompos’s vehicle heading northbound on Columbus Avenue even before Officer Tompos turned onto West 104th Street (93-94, 143). Thus, contrary to the Appellate Division dissent, whether Officer Tompos’s vehicle had its lights and siren on or off, plaintiff failed to raise a triable issue of fact. In any event, pursuant to VTL §§ 1104(b)(4) and (c), Officer Tompos was empowered to proceed against traffic on West 104th Street without lights and sirens engaged. The dissenting Justices speculated, as did plaintiff, that Officer Tompos’s view may have been obstructed by an ESU truck parked near the accident location, but even if such truck was present, no witness testified to having an obstructed view. Moreover, the Police Accident Report’s statement that “the officer did negotiate around a parked [ESU] truck at which time he struck a housing [RMP]” suggests a careful, or at the very least, non-reckless, movement of the vehicle. The dissent is premised on an erroneous reading of the Police Accident Report as having stated that “an ESU vehicle obstructed Tompos’s view of the intersection and thus of plaintiff’s vehicle.” 105 AD3d at 622. The record contains no evidence to that effect. Thus, the alleged presence of the ESU truck did not give rise to a triable issue of fact. Similarly, the dissent erroneously stated that Officer Tompos entered West 104th Street “in disregard of the traffic signal.” 105 AD3d at 623. Since Officer Tompos was exercising the privilege of driving against the direction of traffic (VTL 1104(b)(4)), he was not aware of whether the traffic control was red or green for eastbound traffic on West 104th Street. Plaintiff, whose vehicle was proceeding eastbound on West 104th Street, did not know whether the signal was red or green for eastbound traffic. Thus, plaintiff did not raise a triable issue of 11 Hon. Andrew W. Klein Page 12 fact pertaining to the traffic control signal at the intersection of Columbus Avenue and West 104th Street. The dissent also erroneously found the existence of a question of fact premised, in part, on an issue improperly raised by plaintiff for the first time in his reply brief in the Appellate Division -- whether Officer Tompos was authorized to respond to a fellow officer’s call for assistance. See Merrill v. Albany Medical Center, 71 NY2d 990, 991 (1988) (“although the dissent in the present case purports to address questions of law, an examination of the full record reveals that the arguments upon which the dissent is predicated were not raised by appellant in the trial court.”). Since plaintiff did not make that argument until he filed his reply brief in the Appellate Division, defendants had no opportunity to respond to it. Even in raising that issue, however, plaintiff failed to cite to any rule or requirement that was violated by Officer Tompos, much less one raised as a predicate to his GML § 205-e cause of action or which could serve as a proper predicate. Moreover, even if such an argument were tenable, it would not create a triable issue of fact with respect to plaintiff’s GML § 205-e cause of action predicated on a violation of VTL § 1104. The dissenting Justices simply assumed, without a factual basis, that it was wrong for Officer Tompos to respond to his fellow officer’s call for help without awaiting a specific directive, or requesting permission, to do so. 105 AD3d at 621, 623. The sole predicate for liability in this case is VTL § 1104 and, therefore, the only issue is whether Officer Tompos operated his vehicle with reckless disregard for the safety of others. The reckless disregard standard applies to any operation of an “authorized emergency vehicle,” as defined by VTL § 101, engaged in an “emergency operation,” as that term is defined by VTL § 114-b. VTL § 1104 applies in this case regardless of the circumstances that led to Officer Tompos’s involvement. The majority opinion in the Appellate Division correctly found that as a matter of law, Officer Tompos did not operate his vehicle recklessly. 12 Hon. Andrew W. Klein Page 13 13 CONCLUSION For all of the reasons stated, the Appellate Division properly affirmed the order granting defendants’ motion for summary judgment and dismissing the complaint. Under the circumstances described, and assuming no jurisdictional impediment, we do not believe that full briefing and oral argument are necessary for this Court to reach the same conclusion. Respectfully submitted, Victoria Scalzo Assistant Corporation Counsel Appeals Division cc: Parker Waichman LLP