Gervasi v. Peay

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered on or about August 30, 1996, which, insofar as appealed from, granted defendant City’s motion for summary judgment dismissing plaintiff’s cause of action under General Municipal Law § 205-e, affirmed, without costs. The IAS Court correctly held that, as a matter of law, the driver of the patrol car in which plaintiff was seated did not 173 act with “reckless disregard for the safety of others”, ignoring known serious risks of harm (Vehicle and Traffic Law § 1104 [e]; see also, Saarinen v Kerr, 84 NY2d 494, 501; Campbell v City of Elmira, 84 NY2d 505, 510-511) while pursuing a stolen moped, there being no dispute that he was unaware that he was turning in the wrong direction onto a one-way street, and that he was not driving at an excessive rate of speed. This standard, governing drivers of emergency vehicles involved in emergency operations, demands that a claimant show that “ ‘the actor has intentionally done 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’ and has done so with conscious indifference to the outcome” (Saarinen v Kerr, supra, at 501 [emphasis added; citations omitted]). The dissent’s suggestion that the driver here clearly could have been seen to have violated this standard gives insufficient regard to the very essence of the doctrine and the circumstances it is intended to address. Indeed, “[t]he ‘reckless disregard’ test, which requires a showing of more than a momentary judgment lapse, is * * * suited to the legislative goal of encouraging emergency personnel to act swiftly and resolutely while * * * protecting the public’s safety to the extent practicable” (Saarinen v Kerr, supra, at 502). The Patrol Guide sections cited by plaintiff are not “part of a ‘well-developed bod[y] of law and regulation’ with positive commands that mandate the performance or nonperformance of specific acts” (Desmond v City of New York, 88 NY2d 455, 464), and thus cannot serve as a basis for a cause of action under General Municipal Law § 205-e. Nor can the 1996 amendment to section 205-e adding subdivision (3) avail plaintiff, since these patrol guidelines cannot reasonably be characterized as codifying a common-law duty {compare, e.g., Farrington v City of New York, 240 AD2d 697). Concur — Sullivan, J. P., Milonas, Williams and Andrias, JJ.