We cannot agree with that part of the majority statement which concludes that summary judgment was properly denied to State Trooper Thomas Hudson’s estate in action No. 3 and to that extent we respectfully dissent.
As a result of being involved in "an emergency operation”, Hudson was statutorily authorized to "[sjtop, stand or park” his vehicle irrespective of other provisions of the Vehicle and Traffic Law (Vehicle and Traffic Law § 1104 [b] [1]). This privilege is conditional, however, in that civil liability may be imposed on Hudson if his conduct rose to the level of recklessness (Vehicle and Traffic Law § 1104 [e]; Saarinen v Kerr, 84 *626NY2d 494). "This standard * * * requires evidence that 'the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” (Saarinen v Kerr, supra, at 501, quoting Prosser and Keeton, Torts § 34, at 213 [5th ed]; see, Mullane v City of Amsterdam, 212 AD2d 848, 850).
Here, there are no material questions of fact with respect to whether Hudson acted with reckless disregard for the safety of others. The record fails to reveal that Hudson specifically deviated from established police procedures when he positioned his vehicle directly behind the disabled tractor trailer and failed to set up flares. Both determinations involved, according to relevant testimony, the exercise of one’s judgment in the circumstances presented taking into consideration the sight distance available to approaching traffic. Here the testimony establishes that Hudson had "brilliantly illuminated” the area by spotlights, flashers, overhead lights and taillights and that his vehicle was visible from one half to three quarters of a mile away. We find that such conduct cannot be characterized as intentionally ignoring a grave risk so that harm to others was probable. Although there is speculation in the record that during the short hiatus (approximately 15 minutes) between Hudson’s discovery of the disabled vehicle and the tragic accident other officers may have acted differently, Hudson’s conduct is not viewed in retrospect but "as of the time and under the circumstances in which [he] acted” (Mullane v City of Amsterdam, supra, at 850). As such, we would grant summary judgment to Hudson’s estate and dismiss the complaint against it in action No. 3.
This result is not inconsistent with this Court’s previous denial of summary judgment to the State, as plaintiff in action No. 2 (State of New York v Boutin, 167 AD2d 697). Although the State cannot be liable given our conclusion that Hudson, an agent of the State, did not act in reckless disregard for the safety of others, the State is nevertheless not entitled to any judgment as a matter of law until the liability, if any, of the other parties has been determined.
Peters, J., concurs. Ordered that the order is affirmed, without costs.