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APPEALS COURT FAVORS OFFICER IN WRONGFUL DEATH SUIT

New York's top court has ruled that a Cheektowaga police officer did not act in "reckless disregard" when his cruiser struck and killed a Depew teen-ager in a 1992 accident.

A $3 million negligence suit had been filed by the parents of Eric Szczerbiak, who was killed while riding his bicycle as Cheektowaga Police Officer Michael Pilat was responding to what later turned out to be a phony emergency call. Szczerbiak was 16.

The state Court of Appeals said "it can by no means be said that the risk" Pilat took "was unreasonable" as he accelerated toward the scene of what was reported to be a fight involving five men at a cemetery. The ruling upheld lower court decisions that had already rejected the negligence claims.

Szczerbiak's parents could not be reached to comment, and their lawyer, Dennis A. Kahn, was unavailable to comment.

"The police in Cheektowaga maintained from the beginning that . . . there was no culpability on the part of the police officer," said Joseph Schoellkopf, the lawyer for Pilat, the Town of Cheektowaga and the police force.

In the wrongful death action, the top court had to consider whether Pilat's conduct in driving his cruiser "rose to the level of reckless disregard for the safety of others" as defined by state law.

The accident occurred near dusk on Dec. 7, 1992. Szczerbiak and other children were riding their bicycles and trying to cross a rain-slicked Dick Road near Christian Road in Cheektowaga.

Pilat had just received a call to respond to reports of a fight at St. Mary's Cemetery. After traveling about 800 feet, Pilat glanced down to turn on his emergency lights and headlights. As he did, his car struck the boy. His siren had not been turned on at the time of the accident.

A defense expert said during a six-day trial in 1995 that the cruiser was not going more than 39 mph at the time of impact, though a witness for the boy's family said the officer was driving at least 55 mph.

The appeals court agreed with a lower court ruling that said more than a "momentary judgment lapse, such as the officer momentarily looking down, is required to satisfy the 'reckless disregard' test."

The justices noted that when he looked down to turn on the lights, he saw no pedestrians and was several blocks from the next intersection.

The court noted that emergency vehicles can disregard speed limits and other traffic laws when responding to an emergency call. Drivers of emergency vehicles still "have a duty to drive with due regard for the safety of all persons." But the court noted there was no evidence Pilat acted recklessly.

The person who called in the false report about the cemetery fight, Susan Dietrich, a Cheektowaga resident at the time, was later fined $500 and put on three years' probation after she pleaded guilty.

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