SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1014 

CA 16-00226 

PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ. 

 

JOHN M. LACEY, PLAINTIFF-APPELLANT-RESPONDENT, 

V MEMORANDUM AND ORDER

CITY OF SYRACUSE, CITY OF SYRACUSE POLICE 

DEPARTMENT AND EDWARD S. BOLES, 

DEFENDANTS-RESPONDENTS-APPELLANTS.

 

SIDNEY P. COMINSKY, LLC, SYRACUSE (SIDNEY P. COMINSKY OF COUNSEL), FOR

PLAINTIFF-APPELLANT-RESPONDENT. 

ROBERT P. STAMEY, CORPORATION COUNSEL, SYRACUSE (JOSEPH R. H. DOYLE OF

COUNSEL), FOR DEFENDANTS-RESPONDENTS-APPELLANTS. 

 

Appeal and cross appeal from an amended order of the Supreme

Court, Onondaga County (Hugh A. Gilbert, J.), entered July 22, 2015. 

The amended order denied the motion of defendants and the cross motion

of plaintiff for summary judgment and ordered a bifurcated trial. 

It is hereby ORDERED that the amended order so appealed from is

unanimously modified on the law by granting defendants’ motion and

dismissing the complaint and by vacating the second and third ordering

paragraphs and as modified the amended order is affirmed without

costs. 

Memorandum: Plaintiff commenced this action seeking to recover

damages for injuries he allegedly sustained when the bicycle he was

riding collided with a police vehicle driven by defendant Edward S.

Boles (defendant officer). Shortly before the collision, defendant

officer observed a motorist commit a traffic violation and followed

the motorist with the intention of giving the driver a verbal warning. 

The motorist brought the vehicle to a stop at a red light and, after

defendant officer stopped his vehicle behind the motorist, he

intermittently moved the vehicle forward into the intersection in an

attempt to get the attention of the driver and to speak with her about

what he had observed. Plaintiff entered the intersection on his

bicycle with the green light and collided with the police vehicle. 

According to defendant officer, the police vehicle was stopped at the

time of the collision. According to plaintiff, defendant officer was

moving the police vehicle into plaintiff’s path of travel at the time

of the collision. 

Defendants moved for, inter alia, summary judgment dismissing the

complaint on the ground that defendant officer’s conduct was measured
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CA 16-00226 

by the “reckless disregard” standard under Vehicle and Traffic Law 

§ 1104 and that his operation of the police vehicle was not reckless

as a matter of law. Plaintiff cross-moved for summary judgment. 

Supreme Court determined, inter alia, that there were questions of

fact that precluded summary judgment for either party, and the court

granted the alternative request for bifurcation in defendants’ motion. 

We modify the amended order by granting defendants’ motion and

dismissing the complaint, and by vacating the ordering paragraphs

concerning bifurcation. 

Initially, we note that there is no dispute that defendant

officer was operating an “authorized emergency vehicle” (Vehicle and

Traffic Law § 101). We reject plaintiff’s contention that, in

determining whether defendant officer’s operation of the police

vehicle qualifies as an “emergency operation” within the meaning of

Vehicle and Traffic Law § 114-b, we should adopt the definition of

“pursuit” contained in the operations manual of defendant City of

Syracuse Police Department (see Criscione v City of New York, 97 NY2d

152, 157-158). Likewise, it is irrelevant whether defendant officer

believed he was involved in an emergency operation (see id. at 158). 

Contrary to plaintiff’s further contentions, we conclude that

defendant officer’s actions constituted an “emergency operation” as

contemplated by Vehicle and Traffic Law § 114-b (see Connelly v City

of Syracuse, 103 AD3d 1242, 1242); the applicable standard of

liability is reckless disregard for the safety of others rather than

ordinary negligence (see § 1104 [e]; Criscione, 97 NY2d at 154); and

defendants established as a matter of law that defendant officer’s

conduct did not constitute the type of recklessness necessary for

liability to attach (see Szczerbiak v Pilat, 90 NY2d 553, 556-557). 

Plaintiff failed to raise a triable issue of fact to defeat

defendants’ entitlement to summary judgment dismissing the complaint

(see Nikolov v Town of Cheektowaga, 96 AD3d 1372, 1373; see generally

Zuckerman v City of New York, 49 NY2d 557, 562). 

In light of our determination, we do not reach the parties’

remaining contentions.

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court