New York State Court of Claims

New York State Court of Claims

MENDEZ v. THE NEW YORK STATE THRUWAY AUTHORITY, #2004-010-006, Claim No. 105714, Motion No. M-67702


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):

Terry Jane Ruderman
Claimant's attorney:
MALLILO & GROSSMAN, ESQS.By: Francesco Pomara, Jr., Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 17, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-3 were read and considered by the Court on defendant's motion for summary judgment:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1

Attorney's Affirmation in Opposition and Exhibits.................................................2

Defendant's Reply Affirmation................................................................................3

Claim No. 105714 arises out of a motor vehicle accident that occurred on March 5, 2001 at approximately 3:00 a.m. The following facts are undisputed on defendant's motion for summary judgment. It was snowing heavily and claimant was driving a van in the right lane of the New York State Thruway, I-87, in the City of Yonkers. The operator of defendant's vehicle was plowing snow in the left lane with its headlights, taillights and all emergency lights activated. Claimant first observed the snowplow at a distance of approximately five city blocks, traveling at a speed of approximately 20 mph. Several cars in the right lane passed the snowplow at a distance of four to five feet between the cars and the end of the plow (Defendant's Ex. D, pp 56-57). The snowplow proceeded partly into the middle lane as claimant was traveling in the right lane at a speed of approximately 20 mph. Claimant attempted to pass the snowplow which, according to claimant, was traveling at a speed of less than 20 mph (Defendant's Ex. D, p 63). The snowplow blade came into contact with claimant's vehicle.

Defendant moves for summary judgment dismissing the claim on the ground that, pursuant to Vehicle and Traffic Law §1103(b), the snowplow was exempt from the rules of the road because it was "actually engaged in work on a highway" and therefore, in order for claimant to recover, he must show that defendant acted recklessly[1] (see Guereschi v Bouchard, 286 AD2d 997, 998). Defendant maintains that operating a snowplow at a speed of less than 20 mph was not reckless under the circumstances of this case. Claimant does not contest the applicability of the statute, nor does claimant dispute the speed of defendant's vehicle. Indeed, it is claimant's own deposition testimony that the snowplow was traveling at a speed of less than 20 mph (Defendant's Ex. D, p 63). Rather, claimant argues that "a question of fact remains as to whether the

defendant was reckless in performing his snow removal at an excessive speed thereby preventing him from observing the other vehicles on the roadway which were attempting to pass him. *** [and] whether the driver of the defendant's vehicle operated said vehicle at a speed in excess of what was safe for plowing conditions thereby making his conduct reckless" (Affirmation of Claimant's Attorney, ¶ 6).

The Court finds that defendant has established a prima facie case for judgment in its favor as a matter of law (see Winegrad v New York Univ. Med. Center, 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557; Oakley v Town of Brookhaven, 273 AD2d 211). Claimant has failed to raise a triable issue of fact as to whether the snowplow "was being operated in reckless disregard of others resulting in a risk so great as to make it highly probable that harm would follow" (Levine v GBE Contracting Corp., ___ AD2d ___, 768 NYS2d 357, 358 quoting Farese v Town of Carmel, 296 AD2d 436, 437). Given that defendant was actually engaged in plowing snow at a speed of less than 20 mph with its headlights, taillights and emergency lights activated, the Court finds no viable contention of recklessness (Sullivan v Town of Vestal, 301 AD2d 824, 825 [considering the slow speed of the work truck and that its various emergency hazard lights were activated, the Court found no viable contention of recklessness]; Green v Covington, 299 AD2d 636, 638 [alleged violations of internal company rules did not rise to the required level of reckless disregard sufficient to withstand defendant's summary judgment motion]; Kearns v Piatt, 277 AD2d 677 [sand truck driver approaching intersection at less than 20 mph downshifted and braked but skidded on icy downgrade and struck another vehicle; driver's conduct did not rise to the level of recklessness]).

Accordingly, defendant's motion is GRANTED and the Claim is dismissed.

February 17, 2004
White Plains, New York

Judge of the Court of Claims

[1] It is noted that neither the claim nor the bill of particulars assert that the snowplow operator's conduct was reckless (Claim, ¶¶10, 11; Defendant's Ex. A; Bill of Particulars ¶6; Defendant's Ex. C).