Lopez v. Town of Gates ( 1998 )

—Order unanimously affirmed without costs. Memorandum: These consolidated actions arise out of a motor vehicle accident that occurred following a police chase through a suburban business district on Route 31 in the Town of Gates. Plaintiff Beduina Lopez’s decedent was a passenger in the vehicle that was allegedly being pursued by Gates police officers when it collided with a vehicle occupied by plaintiffs William E. and Dolores M. Pugh. Defendant Town of Gates (Town) moved for summary judgment dismissing the complaints against it in actions No. 1 and No. 3 on the ground that, pursuant to Vehicle and Traffic Law § 1104, it is not subject to civil liability.

Supreme Court properly denied the motion. The Town presented evidence that its officers never exceeded 60 miles per hour and that they broke off the chase well before the collision occurred. Plaintiffs, however, submitted proof that the average speed of the pursuing officers exceeded 90 miles per hour and that the collision occurred within moments after they terminated the pursuit. That conflicting evidence raises triable issues of fact whether the officers acted in reckless disregard for the safety of others (see, Sisson v Baritot, 245 AD2d 1084; McKenica v City of Tonawanda, 239 AD2d 951; Schaeffer v DiDomenico, 238 AD2d 931) and, if so, whether the recklessness of the officers was a proximate cause of the accident (see, Mercado v Vega, 77 NY2d 918, 920; cf., Mullane v City of Amsterdam, 212 AD2d 848, 850). (Appeal from Order of Supreme Court, Monroe County, Bergin, J. — Summary Judgment.) Present— Green, J. P., Pine, Hayes, Callahan and Fallon, JJ.