DENZEL COSTON, PLAINTIFF-RESPONDENT,V CITY OF BUFFALO, CITY OF BUFFALO POLICEDEPARTMENT AND ADAM M. WIGDORSKI,DEFENDANTS-APPELLANTS.TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (DAVID M. LEE OFCOUNSEL), FOR DEFENDANTS-APPELLANTS.CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FORPLAINTIFF-RESPONDENT.Appeal from an order of the Supreme Court, Erie County (Tracey A.Bannister, J.), entered April 17, 2017. The order denied defendants’motion for summary judgment dismissing the complaint.It is hereby ORDERED that the order so appealed from isunanimously affirmed without costs.Memorandum: Plaintiff commenced this action seeking damages forinjuries he sustained when the vehicle he was operating collided witha police vehicle operated by defendant Adam M. Wigdorski, a policeofficer employed by defendant City of Buffalo. Defendants moved forsummary judgment dismissing the complaint on various grounds and, indenying the motion, Supreme Court determined, inter alia, that thereis an issue of fact whether the reckless disregard standard of care asopposed to ordinary negligence is applicable to this case. As limitedby their brief on appeal, defendants contend that the court shouldhave granted their motion on the ground that Wigdorski did not actwith reckless disregard for the safety of others.Initially, we agree with defendants that the reckless disregardstandard of care is applicable to this case and thus that the courterred in finding that there was an issue of fact with respect to theapplicable standard of care. At the time of the accident, Wigdorskiwas responding to a dispatch call in an authorized emergency vehicle.We agree with defendants that Wigdorski was involved in an emergencyoperation and that his vehicle therefore was exempt from therequirement that the vehicle’s emergency lights or siren must beactivated (see Perkins v City of Buffalo, 151 AD3d 1941, 1942 [4thDept 2017]). We also agree with defendants that any evidence thatWigdorski did not slow down prior to running a stop sign and collidingwith plaintiff’s vehicle does not render Wigdorski’s conduct” ‘unprivileged as a matter of law’ ” (id.;cf. LoGrasso v City ofTonawanda,87 AD3d 1390, 1391 [4th Dept 2011]). Thus, we concludethat the standard of care pursuant to Vehicle and Traffic Law § 1104(e), i.e., reckless disregard for the safety of others, applies toWigdorski’s conduct rather than that of ordinary negligence (seeConnelly v City of Syracuse, 103 AD3d 1242, 1242 [4th Dept 2013]).Contrary to defendants’ further contention, however, the courtproperly denied the motion inasmuch as there are triable issues offact whether Wigdorski acted with reckless disregard for the safety ofothers by “intentionally [performing an] act of an unreasonablecharacter in disregard of a known or obvious risk that was so great asto make it highly probable that harm would follow and [doing] so withconscious indifference to the outcome” (Perkins, 151 AD3d at 1942[internal quotation marks omitted]). Specifically, there areconflicting versions of the accident, including whether Wigdorskislowed his vehicle before passing through the stop sign (see Rice vCity of Buffalo,145 AD3d 1503, 1505 [4th Dept 2016];Connelly, 103AD3d at 1242-1243).Entered: June 8, 2018 Mark W. BennettClerk of the Court
