New York State Court of Claims

New York State Court of Claims

PULSIFER v. THE STATE OF NEW YORK, #2002-007-155, Claim No. 98139, Motion No. M-64546


Defendant moved for summary judgment asserting, inter alia, that the appropriate standard of care was reckless disregard. Motion denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

John L. Bell
Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
March 8, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has made an application for an order granting summary judgment dismissing the claim. The return date of the motion was March 6, 2002. The following papers were read and considered by the court:

Notice of Motion, Affirmation of Frederick
H. McGown, III, Esq., Annexed Exhibits 1, 2, 3

Affidavit in Opposition of Donald J. Pulsifer 4

Filed Papers: Claim, Answer 5, 6

At approximately 7:15 a.m. on April 11, 1996, claimant was involved in an accident involving several vehicles on State Route 9N in the Town of Ausable, Clinton County. Shortly before the accident occurred, Department of Transportation (DOT) employee Joseph Frenia was driving east on State Route 9N. He was commuting to his job in a State pickup truck and, at a curve approximately three miles east of the Village of Ausable Forks, he observed icy conditions on the highway. Mr. Frenia pulled to the side of the highway and used a radio in the DOT vehicle to call for a sanding truck. As he was making the call or shortly thereafter, certain vehicles passed him, struck the ice on the highway and were involved in the subject accident (Exhibit G, at 7).

On the morning of the accident, claimant was traveling west on Route 9N, commuting from his home in the Village of Keeseville to his job at Whiteface Mountain. Immediately before the accident, he allegedly observed the DOT truck parked partially on the highway. Although Frenia testified that he had activated the vehicle's yellow flashing lights, claimant avers that he "did not see any lights on the vehicle that indicated it was an emergency vehicle and I did not see any flashing yellow lights" (Pulsifer Affidavit, par. 3). Claimant related that an eastbound vehicle, operated by Jeanne C. Hardy, pulled into his lane to go around the DOT truck and that when the Hardy vehicle did not return to its lane, claimant applied his brakes and attempted to pull to the right (see, Exhibit C; Exhibit F, at 22-24). Claimant's vehicle reportedly began to slide on black ice. The Hardy vehicle and claimant's vehicle collided, and two vehicles that were following the Hardy vehicle slid into the accident.

In his claim, claimant alleges, inter alia, that defendant caused or contributed to the accident by improperly blocking a portion of the highway with the DOT vehicle. Disclosure is complete and defendant now moves for summary judgment arguing, inter alia, that its conduct is governed by a reckless disregard standard.

Summary judgment is a drastic remedy that should be employed only when no triable issues exist (Andre v Pomeroy, 35 NY2d 361; Lebanon Val. Landscaping v Town of Moriah, 258 AD2d 732). The initial burden falls upon the proponent of the motion to tender sufficient proof to eliminate all material issues of fact and establish entitlement to 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). Significantly, 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, 279 AD2d 762, lv denied 96 NY2d 709).

In Riley v County of Broome (95 NY2d 455), the Court of Appeals held that Vehicle and Traffic Law § 1103(b) exempts vehicles engaged in work on a highway from the rules of the road and limits the liability of the operators and owners of such vehicles to reckless conduct. The Riley case involved an accident between a motorist and a street sweeper that was cleaning streets at the time of the accident. The companion case decided with Riley, Wilson v State of New York, involved an accident between a motorist and a snowplow that was on the highway to remove snow when the accident occurred. Notably, the Court of Appeals found that the street sweeper and snowplow were engaged in "work on a highway," and thus entitled to the reckless disregard standard, because "[t]he street sweeper was cleaning the street; the snowplow was clearing the road during a snowstorm" (id., at 463; see, Sega v Ryder, 287 AD2d 848 [DOT truck engaged in an ice removal and salting operation]; Guereschi v Bouchard, 286 AD2d 997 [snowplow engaged in moving snow]).

Construing the evidence most favorably to claimant[1] reveals that Frenia was commuting to work when he observed ice on the highway. He parked the DOT vehicle in such a fashion that half the vehicle was on the traveled portion of the highway. The vehicle was parked at a curve in the highway and Frenia had observed that the curve was covered with ice. He did not activate any warning lights on the vehicle. Frenia made a radio call from the parked truck regarding the road conditions. He did not commence any work on the highway. Shortly after he parked the DOT vehicle, the eastbound Hardy vehicle came upon him and had to swerve into the westbound lane because the DOT truck partially blocked the eastbound lane. Ostensibly because of the icy conditions the Hardy vehicle remained partially in the westbound lane. Claimant applied his brakes and attempted to steer to the right but was unable to do so because of the icy conditions. The Hardy vehicle and claimant's vehicle collided. Two other vehicles were unable to stop and were involved in the accident.

The court is not convinced that such facts establish that the reckless disregard standard controls. Statutes such as Vehicle and Traffic Law § 1103(b), which abrogate the common-law, are construed narrowly (Arbegast v Board of Educ. of New Berlin Cent. School, 65 NY2d 161, 169; Newell v State of New York, Ct Cl, July 2, 2001 [Claim No. 93670, Motion No. M-63436], Bell, J.).[2] Frenia was commuting to work in a State vehicle when he observed the icy condition. He pulled to the side of the highway and was in the process of calling or had just completed a call for a sanding truck. The law does not compel the conclusion that merely making a call regarding road conditions from a truck parked partially on the road rises to the level of engaging in "work on a highway" (see, Riley v County of Broome, supra; Sega v Ryder, supra; Guereschi v Bouchard, supra; see also, Newell v State of New York, supra).

Defendant further argues that claimant has failed to set forth sufficient facts to sustain liability under the ordinary negligence standard. The court is unpersuaded by such argument. If claimant can convince the trier of the fact of his contentions that the DOT vehicle was halfway into the eastbound land with no warning lights activated while at a curve Frenia knew was covered with ice, claimant may succeed in establishing that culpable conduct by defendant was a factor in the accident (see, Boehm v Telfer, 250 AD2d 975; 1A PJI 2:72, at 338 [3d ed 2001]).

It is

ORDERED that defendant's motion is denied.

March 8, 2002
Plattsburgh, New York

Judge of the Court of Claims

[1] There are significant variations of facts regarding the incident. On this motion, the facts must be construed in favor of the opponent to summary judgment.
[2] Copies of recent decisions of the Court of Claims are available at: