In Sierk v. Frazon (32 AD3d 1153, 821 NYS2d 689 [2006]), the plaintiff was a peace officer for a municipal housing authority involved in a car accident who filed suit for his resulting personal injuries. Defendant pleaded various affirmative defenses including ordinary negligence. Plaintiff moved, as here, to dismiss the affirmative defense alleging ordinary negligence.

The Fourth Department found the trial court properly granted plaintiff's motion to strike the ordinary negligence affirmative defense stating that "the reckless disregard for the safety of others standard set forth in Vehicle and Traffic Law § 1104, rather than ordinary negligence, applies to plaintiff" (Sierk, 32 AD3d at 1155).