TOM
Decolator, Cohen & DiPrisco, LLP, Garden City (Joseph L. Decolator of counsel), for Quock, appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Marjorie E. Bornes of counsel), for Azad and Inta Cab Corp., appellants.
Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent.
TOM, J.P., SWEENY, SAXE, FREEDMAN, CLARK, JJ.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered November 28, 2012, which granted defendant City of New York's motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.
Plaintiff police officer was injured in a collision at an intersection between a radio motor patrol vehicle in which he was a passenger, and a taxicab owned by defendant Inta Cab Corp. and driven by defendant Azad. The accident occurred when plaintiff's partner, Officer Santiago, driving east in response to a radio call of a crime in progress, proceeded through a red traffic light and was hit by Azad's cab, which was traveling northbound.
Dismissal of the action as against the City was proper since there are no triable issues as to whether Santiago acted recklessly in crossing the intersection, as required to impose liability under Vehicle and Traffic Law § 1104, the statutory predicate for plaintiff's claim under General Municipal Law § 205–e ( see Gonzalez v. Iocovello, 93 N.Y.2d 539, 551, 693 N.Y.S.2d 486, 715 N.E.2d 489 [1999] ). The record shows that Santiago activated her lights and sirens immediately upon entering the vehicle, thereby alerting those around her to her presence and emergent right of way ( see Frezzell v. City of New York, 105 A.D.3d 620, 963 N.Y.S.2d 637 [1st Dept.2013]; Spencer v. Astralease Associated, Inc., 89 A.D.3d 530, 932 N.Y.S.2d 480 [1st Dept.2011] ). Santiago also reduced her speed as she approached the intersection and although she thereafter accelerated, Santiago looked in the direction of oncoming traffic, but saw no cars approaching ( cf. Campbell v. City of Elmira, 84 N.Y.2d 505, 508, 620 N.Y.S.2d 302, 644 N.E.2d 993 [1994] ). The fact that Santiago did not see Azad's taxi until just before the accident does not render her conduct reckless ( see Perez v. City of New York, 80 A.D.3d 543, 915 N.Y.S.2d 77 [1st Dept.2011] ).
Furthermore, even after accelerating into the intersection, there is no evidence that Santiago was travelling faster than 35 m.p.h., a mere five miles per hour above the applicable speed limit. Considering that she was responding to a report of a crime in progress, Santiago's relatively modest speed under the circumstances does not rise to the level of reckless conduct ( see Saarinen v. Kerr, 84 N.Y.2d 494, 503, 620 N.Y.S.2d 297, 644 N.E.2d 988 [1994];Perez, 80 A.D.3d at 543–544, 915 N.Y.S.2d 77).