McKENICA v. CITY OF TONAWANDA

Order unanimously affirmed with costs. Memorandum: Plaintiff commenced this action to recover damages for injuries he sustained when a police vehicle struck him as he crossed Niagara Street in the City of Tonawanda. At the time of the accident, defendant police officer was responding to a call for assistance from another officer. Defendants moved for summary judgment dismissing the complaint on the ground that, pursuant to Vehicle and Traffic Law § 1104, civil liability may not be imposed upon them.

Supreme Court properly denied that motion. Defendants failed to establish their entitlement to judgment as a matter of law ( see, CPLR 3212[b]). Triable issues of fact exist with respect to the circumstances of the accident and whether defendant police officer drove his vehicle in reckless disregard for the safety of others ( see, Vehicle and traffic Law § 1104[e]; Campbell v City of Elmira, 84 N.Y.2d 505, 510-511; Schaeffer v. DiDomenico, 238 A.D.2d 931; Rouse v. Dahlem, 228 A.D.2d 777). (Appeal from Order of Supreme Court, Erie County, Flaherty, J. — Summary Judgment.)