Foster v. Suffolk Cnty. Police Dep't

• Decision Date: 09 March 2016
• Citation: 137 A.D.3d 855,26 N.Y.S.3d 781
• Parties: Maureen FOSTER, etc., plaintiff-respondent, v. SUFFOLK COUNTY POLICE DEPARTMENT, et al., appellants, John Licausi, defendant-respondent.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 855

26 N.Y.S.3d 781

Maureen FOSTER, etc., plaintiff-respondent,

v. SUFFOLK COUNTY POLICE DEPARTMENT, et al., appellants,John Licausi, defendant-respondent.

Supreme Court, Appellate Division, Second Department, New York.

March 9, 2016.

Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Susan A. Flynn of counsel), for appellants.

Ira Cooper, Carle Place, N.Y., for plaintiff-respondent.

Frank J. Laurino, Bethpage, N.Y., for defendant-respondent.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, ROBERT J. MILLER, and BETSY BARROS, JJ.

In an action, inter alia, to recover damages for negligence and wrongful death, the defendants Suffolk County Police Department and the County of Suffolk appeal from an order of the Supreme Court, Suffolk County (Mayer, J.), dated January 6, 2014, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs.

On May 8, 2008, at approximately 11:43 a.m., Police Officer Michael Bogliole, after receiving a radio dispatch concerning the attempted sale of allegedly stolen landscaping equipment, responded to the corner of Mt. McKinley Avenue and Granny Road in the Village of Farmingville. Based on the information provided, he considered it a "nonpriority call" and traveled to the location without his lights or sirens on. When he arrived at the scene, he spoke to the man who had reported the incident and to the suspect, the defendant John Licausi. He also obtained a copy of Licausi's identification. As Officer Bogliole investigated the matter, an argument ensued, and Licausi, against Officer Bogliole's orders, got into his car and fled. Officer Bogliole pursued him in his police vehicle, with the lights and sirens on. The pursuit was conducted at high speeds through a residential neighborhood. Ultimately, Licausi, with Officer Bogliole following him, drove through a steady red light at the intersection of Old Medford Avenue and Horseblock Road and collided with a car driven by Scott Foster. Foster died as a result of the injuries he sustained in the accident.

Thereafter, Foster's wife, individually and as executrix of the estate, commenced this action against the Suffolk County Police Department and the County of Suffolk (hereinafter together the County defendants), as well as against Licausi, seeking damages based on alleged recklessness and negligence. The County defendants moved for summary judgment dismissing the complaint insofar as asserted against them, and also for summary judgment dismissing a cross claim asserted against them by Licausi. The Supreme Court denied the County defendants' motion. The County defendants appeal, and we affirm.

" ‘The manner in which a police officer operated his or her vehicle in responding to an emergency may form the basis of civil liability to an injured third party if the officer acted in reckless disregard for the safety of others' " (Quintana v. Wallace, 95 A.D.3d 1287, 1287, 945 N.Y.S.2d 366, quoting Ferrara v. Village of Chester, 57 A.D.3d 719, 720, 869 N.Y.S.2d 600 ; see Vehicle and Traffic Law § 1104[e] ; Criscione v. City of New York, 97 N.Y.2d 152, 156, 736 N.Y.S.2d 656, 762 N.E.2d 342 ; Saarinen v. Kerr, 84 N.Y.2d 494, 501, 620 N.Y.S.2d 297, 644 N.E.2d 988 ; Daly v. County of Westchester, 63 A.D.3d 988, 989, 882 N.Y.S.2d 209 ). " ‘The ‘reckless disregard’ standard requires proof that the officer intentionally committed 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' " (Quintana v. Wallace, 95 A.D.3d at 1287, 945 N.Y.S.2d 366, quoting Ferrara v. Village of Chester, 57 A.D.3d at 720, 869 N.Y.S.2d 600 ; see Campbell v. City of Elmira, 84 N.Y.2d 505, 510, 620 N.Y.S.2d 302, 644 N.E.2d 993 ; Saarinen v. Kerr, 84 N.Y.2d at 494, 620 N.Y.S.2d 297, 644 N.E.2d 988 ; Daly v. County of Westchester, 63 A.D.3d at 989, 882 N.Y.S.2d 209 ).

In this case, the County defendants, in moving for summary judgment, failed to establish, prima facie, that Officer Bogliole did not act in reckless disregard for the safety of others in commencing, conducting, or failing to terminate the high-speed pursuit of Licausi's vehicle (see Quintana v. Wallace, 95 A.D.3d 1287, 945...