New York State Court of Claims

New York State Court of Claims

VANWEDDINGER v. NEW YORK STATE THRUWAY AUTHORITY, #2004-010-016, Claim No. 107608, Motion Nos. M-68251, CM-68305


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:
GREENWALD LAW OFFICESBy: Jamie C. Greenwald, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Judith McCarthy, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 10, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-4 were read and considered by the Court on defendant's motion for summary judgment and claimant's cross-motion for summary judgment:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1

Supporting Memorandum of Law and Exhibit.........................................................2

Notice of Cross-Motion, Attorney's Supporting Affirmation..................................3

Attorney's Reply Affirmation...................................................................................4

The following facts are essentially undisputed. On June 6, 2002, New York State Thruway Authority (NYSTA) bridge patrol operators Domenick Giovinazzo and James Guarino were operating a NYSTA tow-truck on the Tappan Zee Bridge. Their duties included keeping the bridge free from debris and removing disabled vehicles from the bridge. At approximately 6:30 a.m., Giovinazzo received a radio dispatch that there was debris on the southbound side of the bridge at mile marker 13.6. There were four southbound lanes at that time and the debris was in the right lane. The operators activated their emergency lights and arrow board directing traffic to the left. Giovinazzo stopped the tow-truck and Guarino exited the truck. Guarino placed the debris, a tire, onto the tow-truck and they proceeded southbound on the bridge. The rush hour traffic was heavy and moving slowly. At mile marker 13.5, one-tenth of a mile from the debris site, the tow-truck struck claimant's stopped vehicle in the rear.[1]

Defendant moves for summary judgment on the ground that, under Vehicle and Traffic Law §1103(b) defendant was "actually engaged in work on a highway" at the time of the accident and therefore claimant must show that defendant acted with "reckless disregard for the safety of others" to prevail on this claim (id.). Claimant cross-moves for summary judgment arguing that defendant is not covered by Vehicle and Traffic Law §1103(b) because defendant was not actually engaged in work on a highway at the time of the accident. Rather, claimant argues that defendant had already retrieved the debris and therefore defendant's work was completed and defendant was no longer within a designated work zone. In support of its cross-motion, claimant relies upon a 1999 Court of Claims case, Cottingham v State of New York, 182 Misc 2d 928. The reasoning in that case, however, has been specifically rejected by the Court of Appeals in Riley v County of Broome, 95 NY2d 455, 468 which states:
"there is no merit to claimants' argument that the protections of section 1103 (b) apply solely to vehicles operating in a designated ‘work area' as defined in Vehicle and Traffic Law § 160. Section 1103 (b) states that a vehicle ‘actually engaged in work on a highway' is exempt from the rules of the road. The statute does not require that a vehicle be located in a designated ‘work area' in order to receives the protection. Significantly, section 160 was not enacted until 1984 – long after section 1103 (b) was adopted. Thus, there is no credible argument that the Legislature only had designated ‘work areas' in mind when it adopted section 1103 (b)."
With reference to the reasoning set forth in Cottingham v State of New York , the Court of Appeals further stated:
"[a]pt as those concerns may be, the Legislature has spoken clearly, giving vehicles engaged in road work the benefit of the same lesser standard of care as emergency vehicles. Any change in that standard, therefore, must come from the Legislature, not the courts."
Thus, claimant reliance upon Cottingham v State of New York is misplaced and the cross-motion is without legal support. Conversely, defendant's motion is wholly supported by the Court of Appeals decision in Riley v County of Broome.

In response to a radio dispatch, defendant proceeded to mile marker 13.6 to remove debris. Defendant removed the debris and then proceeded across the bridge. It is undisputed that defendant had traveled only one tenth of a mile before encountering claimant's vehicle at mile marker 13.5. Indeed defendant would presumably be under a duty, as a bridge patrol operator, to maintain a watchful eye and respond to any other debris observed en route even if it were not specifically reported by the radio dispatcher. Thus, the Court finds that defendant was still engaged in work on a highway after defendant had retrieved the debris at mile marker 13.6 and continued to travel across the bridge. Therefore defendant is covered by Vehicle and Traffic Law §1103 (b) (see Skolnick v Town of Hempstead, 278 AD2d 481 [defendant town was covered by Vehicle and Traffic Law §1103(b) where its town truck had an accident with plaintiff's vehicle after truck had just cleaned the storm drains at an intersection]).

The Court further finds that claimant failed to raise an issue of fact as to whether defendant's conduct was reckless (see Farese v Town of Carmel, 296 AD2d 436, 437 [plaintiff failed to raise issue of fact as to whether tractor was being operated recklessly]; Levine v GBE Contr. Corp., 2 AD3d 596 [defendant was actually engaged in work on a highway and entitled to summary judgment where plaintiff failed to raise an issue of fact as to whether truck was reckless]).

The recklessness standard requires more than a showing of lack of due care, which is associated with ordinary negligence (Notorangelo v State of New York, 240 AD2d 716, 717). It "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, quoting Prosser and Keeton, Torts § 34, at 213 [5th ed]; see Szczerbiak v Pilat, 90 NY2d 553). Here, the undisputed facts that defendant struck claimant's vehicle in the rear after defendant had traveled one tenth of a mile in heavy traffic, necessarily at a slow pace, did not rise to the level of recklessness.

Accordingly, defendant's summary judgment motion is GRANTED and the claim is DISMISSED. Claimant's cross-motion is DENIED.

May 10, 2004
White Plains, New York

Judge of the Court of Claims

[1] Solely with regard to this summary judgment motion, defendant concedes that the tow-truck struck claimant's vehicle.