New York State Court of Claims

New York State Court of Claims

ERIE INSURANCE a/s/o SCHOEN PLACE AUTO v. THE STATE OF NEW YORK, #2004-031-103, Claim No. 107974, Motion No. M-68681


Viewing evidence in light most favorable to Claimant, there is no indication that snowplow operator acted with reckless disregard for the safety of others. Defendant's motion for summary judgement is granted

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):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 30, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 3, were read on motion by Defendant for summary judgment dismissing the claim:
1) Notice of motion, filed June 14, 2004;
2) Affirmation of Thomas G. Ramsay, Esq., dated June 9, 2004, with attached exhibits;
3) Affirmation in Opposition of Eric D. Handelman, Esq., dated July 14, 2004, with attached exhibits. Upon the foregoing papers, and upon oral argument from counsel in this matter, Defendant's motion for summary judgment is granted and the claim is dismissed.
On February 17, 2003, in the Town of Gates, New York, David W. Laveck was operating a motor vehicle owned by Claimant's insured, Schoen Place Auto, Inc. Mr. Laveck was traveling in the right westbound lane of Chili Avenue when he came to the intersection of that street and Route 204. According to his deposition testimony, Mr. Laveck had a green light and saw no oncoming traffic approaching the intersection and turned north, or right, onto Route 204.

Immediately prior to this, Brian E. Cieslinski, Defendant's employee, was operating a Department of Transportation snowplow and was engaged in snow removal on Route 204. Mr. Cieslinski was traveling south, with the snowplow's yellow hazard lights activated. He was using all three types of plows during the snow removal operation, namely, the front plow, the right wing plow and the left wing plow. When Mr. Cieslinski approached the intersection at Chili Avenue, he intended to, and in fact did, turn left into a "turnaround" or "U-turn" just south of the intersection. He testified at a deposition that he raised his plows when he came to the intersection and then proceeded to take the left turn into the U-turn.

While sitting in the U-turn, Mr. Cieslinski watched for passing traffic and looked for an opportunity to pull out onto Route 204 northbound. When he observed no headlights of any oncoming traffic, he moved out of the U-turn and onto Route 204 and slowly moved across the Chili Avenue intersection. When he reached Route 204, north of the intersection, he dropped the front plow. He testified that it was at that point he felt a "nudge," took his foot off the accelerator, then felt a second "nudge." When the driver checked his rearview mirror, he observed, for the first time, Claimant's insured's car to the right side of the snow plow pushed into the guard rail.

Mr. Laveck stated the traffic control device at the intersection was green and, because he observed no oncoming traffic on Chili Avenue, he proceeded into the intersection. It appears from the papers before me that Claimant did not see the snowplow in the U-turn and that the plow operator did not see Claimant at the intersection.
With this motion, Defendant requests summary judgment, positing that the "reckless disregard" standard of Vehicle and Traffic Law § 1103(b) applies in this instance, rather than the lower common negligence standard. Defendant argues that no fair view of the evidence could result in a determination that the snowplow operator acted with reckless disregard for the safety of others when he struck Claimant's insured's vehicle.[1]

Section 1103(b) of the Vehicle and Traffic Law states that the normal rules of the road shall not apply to "hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway," however, the operator of such vehicles has the "duty to proceed at all times during all phases of such work with due regard for the safety of all persons" and shall be responsible for the "consequences of their reckless disregard for the safety of others." Snowplows engaged in snow removal operations are hazard vehicles within the meaning of Section 1103(b) and are, therefore, exempt from the normal rules of the road and liable only for conduct that constitutes reckless disregard for the safety of others (Riley v County of Broome, 95 NY2d 455). The Court of Appeals has defined reckless disregard for the safety of others as the "conscious or intentional doing of an act of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow, and done with conscious indifference to the outcome (citations omitted)" (Szczerbiak v Pilat, 90 NY2d 553, 557).

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial (Alvarez v Prospect Hospital, 68 NY2d 320). Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713).

I have been presented with the deposition testimony of the drivers of both vehicles involved in the incident. In addition, I have the MV-104A Police Accident Report and a redacted Supervisor's Incident Analysis Report Form prepared by Mr. Cieslinski's supervisor after the accident. It appears that Mr. Laveck was actually, and legally, within the process of making a right hand turn onto Route 204 north from Chili Avenue when the first impact occurred. It also appears that the snowplow operator, with yellow hazard lights working, had already reached the intersection after successfully moving from the U-turn onto Route 204. The fact that he did not notice Claimant's car at the intersection as he pulled out into traffic and continued to be unaware of his presence as he moved the plow over into the right hand lane of Route 204 can be characterized as negligence at best; a momentary lapse of judgment that does not rise to the level of recklessness. Even looking at the facts in a light most favorable to Claimant, as I must in this summary judgment motion, I can conceive of no fair view of the evidence that could lead to the conclusion that the snowplow operator ignored a grave risk likely to cause harm.

Based upon the foregoing, it is hereby

ORDERED, that Defendant's motion for summary judgment is granted. The claim is dismissed and the Clerk of the Court is directed to close the file.

August 30, 2004
Rochester, New York

Judge of the Court of Claims

[1]Defendant had also moved to dismiss the claim pursuant to Court of Claims Act § 11(b) because the claim and notice of intention set forth a different date. However, Claimant attached the accident report bearing the correct date to each of those documents. I denied that part of the motion to dismiss at oral argument.