The verdict was not against the weight of the evidence, which showed that at the time of the accident the police officers were in the pursuit of a suspect who reportedly had stolen a car and had a gun, and that their vehicular pursuit of the suspect did not recklessly disregard a known or obvious risk that was so great as to make highly probable that harm would follow ( see, Saarinen v. Kerr, 84 N.Y.2d 494, 501). Accordingly, the officers' vehicle was engaged in an emergency operation within the meaning of Vehicle and Traffic Law § 114-b, and the jury was properly charged on Vehicle and Traffic Law § 1104. The deposition testimony of the unavailable officer was properly excluded under CPLR 3117(c) since plaintiffs were not parties to the action in which that testimony was taken.
Concur — Murphy, P.J., Sullivan, Nardelli and Tom JJ.