Mullane v. City of Amsterdam

• Decision Date: 02 February 1995
• Citation: 622 N.Y.S.2d 346,212 A.D.2d 848
• Parties: Daniel J. MULLANE et al., Appellants, v. CITY OF AMSTERDAM et al., Respondents. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

Page 346

622 N.Y.S.2d 346

212 A.D.2d 848

Daniel J. MULLANE et al., Appellants, v. CITY OF AMSTERDAM et al., Respondents.

(And a Third-Party Action.)

Supreme Court, Appellate Division,

Third Department.

Feb. 2, 1995.

Bodow Law Firm P.C. (Michelle C. Marans, of counsel) and Falco, Falco & Sobolevsky, Syracuse, for appellants.

Carter, Conboy, Case, Blackmore, Napierski & Maloney P.C. (Susan Di Bella Harvey, of counsel), Albany, for respondents.

Before CARDONA, P.J., and MIKOLL, CREW, WHITE and YESAWICH, JJ.

WHITE, Justice.

Appeal from an order of the Supreme Court (Best, J.), entered December 10, 1993 in Montgomery County, which granted defendants' motion for summary judgment dismissing the complaint.

Defendant Thomas P. Di Mezza, a police officer employed by defendant City of Amsterdam in Montgomery County, was on vehicular patrol at approximately 8:00 P.M. on October 28, 1988 when he heard screeching tires and observed two pick-up trucks, one black and one tan, speeding from the parking lot of the McDonald's restaurant located on Market Street in the City, heading north. As the tan-colored truck exited the parking lot, it cut off a northbound vehicle and a collision was narrowly avoided. The trucks then continued in the northbound lane of Market Street at an excessive rate of speed.

As a result of these observations, Di Mezza determined that the trucks were in violation of various provisions of the Vehicle and Traffic Law and pursued the trucks, which were then traveling approximately 50 miles per hour in a 30-mile-per-hour speed zone. From his observations Di Mezza believed that the trucks were racing, since the tan truck repeatedly crossed the center line of the two-lane highway to pass the other, and he activated his siren and red lights. As they reached the City limits, the black truck pulled onto the shoulder of the road but the tan-colored truck, being driven by third-party defendant, David Barnes, proceeded to speed away.

Di Mezza radioed the police dispatcher and obtained permission to proceed beyond the City limits in pursuit. He followed Barnes' truck north on State Route 30 through a less-populated area and then east on State Route 29 through a rural area at speeds sometimes approaching 90 miles per hour. Di Mezza continued the pursuit on Route 29 but reduced his speed and fell back because of several curves in the road, although he did not lose sight of the truck and he kept his lights and siren on during the entire episode. Barnes, however, continued at a high rate of speed, failed to negotiate a curve, veered into the westbound lane and collided head-on with plaintiffs' vehicle. Barnes was thereupon arrested on multiple charges including reckless driving and driving while intoxicated.

Plaintiffs commenced this action against defendants who, in turn, commenced a third-party action against Barnes. Following discovery, defendants moved for summary judgment dismissing the complaint and Supreme Court granted the motion. Plaintiffs appeal.

Vehicle and Traffic Law § 1104 authorizes the operator of an emergency vehicle in an emergency situation to exceed posted speed limits and to disregard standard traffic regulations so long as the driver proceeds with due regard for the safety of all persons. In order to recover, a plaintiff must establish that the conduct of the pursuing officer was unreasonable and without regard for the safety of others, and the reasonableness of the pursuit must be gauged as of the time and under the circumstances in...