Asante v. Asante

Asante v Asante (2016 NY Slip Op 00284)

Asante v Asante

2016 NY Slip Op 00284

Decided on January 19, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 19, 2016
Mazzarelli, J.P., Acosta, Andrias, Moskowitz, JJ.

403318/10 16674 16673

[*1] Emma O. Asante, Plaintiff-Appellant-Respondent,

v

Prince Asante, Defendant-Respondent-Appellant, The City of New York, et al., Defendants-Respondents.

Hoberman & Trepp, PC, Bronx (Adam F. Raclaw of counsel), for appellant-respondent.

Burns & Nallan, New York (Vanessa A. Gomez of counsel), for respondent-appellant.

Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondents.

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered November 12, 2013, which granted the New York City defendants reargument of their motion for summary judgment dismissing the complaint as against them and, upon reargument, granted the motion, unanimously affirmed, without costs.

The City defendants established prima facie entitlement to summary judgment dismissing plaintiff's personal injury action against them based upon: (1) Officer Gil's uncontradicted deposition testimony that she was responding to a "10-85" radio call of an officer in need of assistance when the police vehicle she was driving collided with appellants' motor vehicle (see generally Vehicle & Traffic Law [VTL] § 114-b; Criscione v City of New York, 97 NY2d 152 [2001]); (2) deposition testimony offered by Officer Gil that the light was red against her when she attempted to get through the intersection, combined with appellants' deposition testimony that they had a green light in their favor at the time of the accident, which supported Officer Gil's position that her conduct was privileged under Vehicle & Traffic Law § 1104(b), entitling her to the "reckless disregard" standard (see VTL 1104[e]; see generally Kabir v County of Monroe, 16 NY3d 217, 227 (2011); Tatishev v City of New York, 84 AD3d 656 (1st Dept 2011); and (3) Officer Gil's testimony that upon reaching the intersection, she observed appellants' vehicle, stopped the police vehicle and waited for appellants' vehicle to also stop prior to attempting to go around the front of that vehicle; however, both vehicles moved forward at the same time resulting in the accident (see generally Frezzell v City of New York, 24 NY3d 213 [2014]; Szczerbiak v Pilat, 90 NY2d 553 [1997]).

The burden on the motion having shifted, appellants failed to offer evidence that raised a triable issue of fact (see Frezzell, 24 NY3d 218).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 19, 2016

CLERK