SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

118 

CA 12-01245 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ. 

 

MICHAEL CONNELLY, 

PLAINTIFF-APPELLANT-RESPONDENT, 

V MEMORANDUM AND ORDER

CITY OF SYRACUSE, SYRACUSE POLICE 

DEPARTMENT AND JOEL S. CORDONE, 

DEFENDANTS-RESPONDENTS-APPELLANTS.

 

MENTER, RUDIN & TRIVELPIECE, P.C., SYRACUSE (THOMAS J. FUCILLO OF

COUNSEL), FOR PLAINTIFF-APPELLANT-RESPONDENT. 

MARY ANNE DOHERTY, CORPORATION COUNSEL, SYRACUSE (ANN MAGNARELLI

ALEXANDER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS-APPELLANTS. 

 

Appeal and cross appeal from an order of the Supreme Court,

Onondaga County (Anthony J. Paris, J.), entered September 28, 2011 in

a personal injury action. The order denied in part plaintiff’s motion

for partial summary judgment and denied defendants’ cross motion for

summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for

injuries he sustained when the bicycle he was riding collided at an

intersection with a police vehicle operated by defendant Joel S.

Cordone, a sergeant in defendant Syracuse Police Department

(hereafter, defendant officer). Plaintiff thereafter moved for

partial summary judgment on liability, i.e., negligence and serious

injury, and apportionment of fault, and defendants cross-moved for

summary judgment dismissing the complaint on the ground that they are

afforded qualified immunity by Vehicle and Traffic Law § 1104 (e). 

Upon stipulation of defendants, Supreme Court granted that part of

plaintiff’s motion seeking summary judgment on the issue of serious

injury, but otherwise denied the motion. The court also denied

defendants’ cross motion, concluding that, although the “reckless

disregard” standard required for the imposition of liability under

section 1104 (e) applied, there were issues of fact whether defendant

officer acted with reckless disregard for the safety of others. 

Plaintiff appeals, and defendants cross-appeal. We affirm.

At the time of the collision, defendant officer was pursuing two

motorcyclists who had committed traffic violations in his presence and
-2- 118 

CA 12-01245 

was therefore operating an authorized emergency vehicle while involved

in an emergency operation (see Vehicle and Traffic Law §§ 101, 114-b;

Sierk v Frazon, 32 AD3d 1153, 1155). Thus, we conclude that the

standard of liability pursuant to Vehicle and Traffic Law § 1104 (e),

i.e., reckless disregard for the safety of others, applies to his

conduct rather than that of negligence (see Sierk, 32 AD3d at 1155;

see generally Criscione v City of New York, 97 NY2d 152, 157-158;

Hughes v Chiera, 4 AD3d 872, 873). We further conclude, however, that

there is an issue of fact whether defendant officer acted with

reckless disregard for the safety of others by entering a limitedvisibility intersection controlled by a four-way stop sign shortly

before midnight without slowing, stopping, or activating his emergency

lights or sirens (see Krulik v County of Suffolk, 62 AD3d 669, 670;

Britt v Bustamante, 55 AD3d 858, 859; Ham v City of Syracuse, 37 AD3d

1050, 1052, lv dismissed 8 NY3d 976).

Entered: February 8, 2013 Frances E. Cafarell

Clerk of the Court