New York State Court of Claims

New York State Court of Claims

REFICI v. THE STATE OF NEW YORK, #2001-007-090, Claim No. 95774, Motion No. M-62913


and M-63025


Synopsis


Defendant moved for summary judgment upon the ground that actions of a driver of a snowplow did not constitute reckless disregard. Motion granted

Case Information

UID:
2001-007-090
Claimant(s):
H. JOSEPH REFICI and RITA M. REFICI
Claimant short name:
REFICI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
95774
Motion number(s):
M-62913and M-63025
Cross-motion number(s):

Judge:
John L. Bell
Claimant's attorney:
Case & Leader, LLP (Robert J. Leader, Esq., of Counsel)
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General (Timothy P. Mulvey, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
February 13, 2001
City:
Plattsburgh
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Defendant has made an application for an order granting summary judgment dismissing the claim. Claimants have made an application for an order granting permission to serve and file an amended claim. The return date of the motions was February 7, 2001.[1] The following papers were read and considered by the court:

Notice of Motion (M-62913), Affirmation of

Timothy P. Mulvey, Esq., Annexed Exhibits,
Memorandum of Law 1, 2, 3, 4


Affirmation in Opposition of Laura D.
Breckenridge, Esq. 5


Notice of Motion (M-63025), Affirmation of

Laura D. Breckenridge, Esq., Proposed
Amended Claim 6, 7, 8

Reply Affirmation of Timothy P. Mulvey, Esq. 9

Filed Papers: Claim, Answer 10, 11

On January 28, 1997, at approximately 10:50 a.m., claimant Rita M. Refici[2] was operating a 1990 Mercury Sable in a general easterly direction on State Route 3 in the Town of Fine, St. Lawrence County. A snowplow owned by defendant and operated by defendant's employee, Brian Bullard, was traveling west on State Route 3 and was plowing snow from the highway. In her claim, claimant asserts that the snowplow was in her lane and forced her off the road. Claimant allegedly sustained, inter alia, a "whiplash" (claim, par. 5). Relying upon the recent decision of the Court of Appeals establishing that recklessness is the standard of care for snowplows working upon the highway (Riley v County of Broome, NY2d , Nov. 21, 2000), defendant has moved for summary judgment. Claimant has moved for permission to file and serve an amended claim alleging recklessness by defendant.

Summary judgment is frequently characterized as a "drastic remedy" which should be employed only when it is clear no triable issues exist (Andre v Pomeroy, 35 NY2d 361; Lebanon Val. Landscaping v Town of Moriah, 258 AD2d 732). The proponent of the motion bears the threshold burden of tendering sufficient evidence to eliminate any material issues of fact and establishing the propriety of judgment as a matter of law (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Tiano v Lane, 260 AD2d 908). If the movant meets the threshold burden, the nonmoving party must step forward with evidence demonstrating a triable issue of fact to defeat the motion (Moran v Technical Bldg. Servs., 258 AD2d 697; Hasbrouck v City of Gloversville, 102 AD2d 905, affd 63 NY2d 916). All evidence must be viewed in the light most favorable to the party opposing the motion (see, e.g., Barker v Kallash, 63 NY2d 19,23; Bazan v Rite Aid of New York, AD2d [Third Dept., Jan. 11, 2001]).

A snowplow engaged in work on a highway is exempt from the rules of the road and is liable only for conduct that constitutes reckless disregard (Vehicle and Traffic Law § 1103[b]; Riley v County of Broome, supra; Kearns v Piatt, AD2d , 716 NYS2d 418). The recklessness 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, 84 NY2d 494, 501; see, Riley v County of Broome, supra). In the case decided with Riley, i.e., Wilson v State of New York, the Court of Appeals upheld a finding of no liability under the recklessness standard where a snowplow struck a car while turning at an intersection. In Kearns v Piatt (supra), the Third Department found reversible error in Supreme Court's denial of summary judgment to the defendant even though the snowplow had skidded through a stop sign and struck a motor vehicle. The Court of Appeals has, however, found summary judgment inappropriate in a case where the defendant's employee was backing a truck at an excessive rate of speed, the truck had inadequate equipment, the driver made no effort to avoid striking a motorist, the truck was operated in a fashion that violated the defendant's own safety directives and the driver had admitted to unsafe backing (Bliss v State of New York, NY2d , Nov. 21, 2000).

In her deposition, claimant testified that it had been snowing off and on prior to the accident. She estimated that five inches or more of snow was on the highway (Exhibit F, at 21). Claimant described the highway as covered with slushy snow (id., at 23). There was a motorist on the highway an estimated quarter-of-a-mile in front of claimant and such vehicle safely passed by the snowplow. Claimant described the accident as follows:
"Well, I was going down Route 3 and started down – it's – it's curvy and then you go down a hill, and it – I saw a car down at the bottom of the hill hit its brakes, so that said to me, it's slipperier yet. So I basically stopped and was just about crawling down the hill and it started to snow – it was snowing, and all of a sudden there was the snowplow right in front of me. So I tried to go around him. (id., at 24).

She stated as follows regarding her efforts to move to the right:

"When I – I knew if I didn't go to the right I was not gonna miss that truck or that plow. He was there. I – I hugged the side of the road. I tried to get over, but you couldn't get over where I would like to have gotten, there was so much slush and stuff built up that you couldn't – you couldn't. (id., at 28).

Although claimant was unable to see markings on the highway, she believed she pulled her car partially onto the shoulder in order to avoid contact with the snowplow (id., at 30). The snowplow and claimant's vehicle did not come into contact. Claimant acknowledged that the snowplow's warning lights were activated at the time of the incident (id., at 29). There is no evidence beyond mere speculation in the papers before the court indicating that the speed at which the snowplow was traveling was unreasonable.

It is readily apparent from claimant's description of the road conditions that there was a need for the snowplow on the highway. In order to clear the road of snow, the snowplow must be permitted to have its plow slightly over the center of the highway. Otherwise, it would not be possible to plow the center of the highway. Moreover, defendant was not obligated to obey the rules of the road regarding keeping right of the center line. Presumably, it would be construed as reckless for a multi-ton vehicle armed with a snowplow affixed to its front to move so far over the center line that oncoming traffic was driven totally off the highway in order to avoid being struck. Here, however, claimant's own testimony reflects that by moving partially onto the shoulder she was able to avoid contact with the snowplow. Unfortunately, she ostensibly lost control of her vehicle while in the slush and snow on the shoulder. The court cannot conclude, without resorting to sophistic reasoning, that the evidence presented by claimant raises a factual issue as to whether defendant's conduct constituted reckless disregard as that standard has developed in this jurisdiction. Defendant's motion must be granted.

Claimants' motion to amend their claim is moot.

Finally, the court notes that the Court of Appeals in Riley v County of Broome (supra) acknowledged the inconsistencies and lack of cogency created by the Legislative framework that currently controls the standard of care for various vehicles including snowplows. This court shares the concerns expressed in Riley (see, Cottingham v State of New York, 182 Misc 2d 928), and has serious apprehension for the safety of motorists under the current status of the law. The court is nevertheless constrained to apply the law as it has been promulgated by the Legislature and interpreted in the appellate courts.

It is

ORDERED that defendant's motion is granted and the claim is dismissed, and it is further

ORDERED that claimant's motion is denied.


February 13, 2001
Plattsburgh, New York

HON. JOHN L. BELL
Judge of the Court of Claims




[1] Defendant was granted leave by the court to file the current motion (see, 3212[a]) upon the ground that the Court of Appeals recently addressed the applicable standard of care.
[2] The claim of H. Joseph Refici is derivative. Unless otherwise indicated, all references herein to claimant are to Rita M. Refici.