Spalla v. Village of Brockport

—Appeal from an order and judgment (one document) of Supreme Court, Monroe County (Siracuse, J.), entered July 19, 2001, which granted the motions of defendants Village of Brockport and County of Monroe for summary judgment. It is hereby ordered that the order and judgment so appealed from be and the same hereby is modified on the law by denying the motion of defendant Village of Brockport and reinstating the third amended complaint against it and as modified the order and judgment is affirmed without costs. Memorandum: Plaintiff commenced this action against, inter alia, defendant Village of Brockport (Village), alleging that police officers employed by the Village acted recklessly in engaging in a high-speed chase of a vehicle that, during the course of the chase, collided with a vehicle operated by plaintiff. As a result of the collision, plaintiff was rendered a paraplegic. Supreme Court erred in granting the motion of the Village seeking summary judgment dismissing the third amended complaint against it. The Village met its initial burden by presenting evidence-establishing that its officers did not act with “reckless disregard for the safety of others” (Vehicle and Traffic Law § 1104 [e]; see Lopez v Town of Gates, 249 AD2d 934; see generally Saarinen v Kerr, 84 NY2d 494, 501). Plaintiff, however, raised an issue of fact by submitting the affidavits of [901] two experts, each of whom opined that the speed of the police vehicles during the pursuit averaged over 70 miles per hour and at times approached 90 miles per hour through congested areas and ultimately into a heavily traveled intersection. Plaintiff thereby raised triable issues of fact whether the officers acted in reckless disregard for the safety of others (see Lopez, 249 AD2d 934; Sisson v Baritot, 245 AD2d 1084, 1084-1085; McKenica v City of Tonawanda, 239 AD2d 951, 952; see also Schaeffer v DiDomenico, 238 AD2d 931) and, if so, whether the recklessness of the officers was a proximate cause of the accident (see Lopez, 249 AD2d 234). We therefore modify the order and judgment by denying the motion of the Village and reinstating the third amended complaint against it. All concur except Hayes, J., who dissents in part and votes to affirm in the following memorandum.