
    Tabitha Olivera, an Infant, by Her Mother and Natural Guardian, Miriam Santos, et al., Appellants, v City of New York, Respondent.
    [658 NYS2d 853]
   Judgment, Supreme Court, New York County (Marylin Diamond, J., and a jury ), entered December 28,1995, in favor of defendant and against plaintiffs, unanimously affirmed, without costs.

The verdict was not against the weight of the evidence, which showed that at the time of the accident the police officers were in the pursuit of a suspect who reportedly had stolen a car and had a gun, and that their vehicular pursuit of the suspect did not recklessly disregard a known or obvious risk that was so great as to make highly probable that harm would follow (see, Saarinen v Kerr, 84 NY2d 494, 501). Accordingly, the officers’ vehicle was engaged in an emergency operation within the meaning of Vehicle and Traffic Law § 114-b, and the jury was properly charged on Vehicle and Traffic Law § 1104. The deposition testimony of the unavailable officer was properly excluded under CPLR 3117 (c) since plaintiffs were not parties to the action in which that testimony was taken. Concur— Murphy, P. J., Sullivan, Nardelli and Tom, JJ.  