New York State Court of Claims

New York State Court of Claims

FABBRI v. THE STATE OF NEW YORK, #2006-030-550, Claim No. 110480, Motion No. M-71417


Defendant’s Motion for summary judgment dismissing claim denied.

Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
June 29, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 6 were read and considered on Defendant’s motion

for summary judgment dismissing the Claim herein:

1,2 Notice of Motion; Affirmation in Support by Vincent M. Cascio, Assistant Attorney General and attached exhibits

  1. Affirmation in Opposition by Michael G. Hayes, Attorney for the Claimant, and attached exhibits
  1. Reply Affirmation in Support by Vincent M. Cascio, Assistant Attorney General
5,6 Filed papers: Claim, Answer

Amelia Fabbri alleges in Claim Number 110480 that on or about February 20, 2003 she was injured in a motor vehicle accident during a snow removal operation by Defendant’s agents, the New York State Department of Transportation (DOT). She was operating her 2003 Nissan automobile traveling northbound on Route 9A, as she approached its intersection with Stormytown Road in Ossining, New York where snow removal operations were ongoing. As she neared the snow removal area she alleges that she was “negligently, carelessly and recklessly . . . directed [by DOT employees] to turn into oncoming traffic”, resulting in her collision with another vehicle as she made a left turn toward westbound Stormytown Road from northbound Route 9A, across the oncoming traffic from southbound Route 9A. [Claim No. 110480, ¶¶10, 12, 13]. Ms. Fabbri also alleges that the DOT breached it duty to maintain the state roadways in a reasonably safe condition, and “negligently failed to properly deploy flagmen . . . negligently failed to deploy signal devices to control traffic; . . . and failed to exercise reasonable care during its operations.” [ibid. ¶10].

In its Answer, in addition to general denials, the State asserted 14 Affirmative Defenses including its Eleventh Affirmative Defense that the acts complained of are privileged pursuant to Vehicle and Traffic Law §1103(b), in that they are activities performed by Defendant in the course of the maintenance of its highways. Defendant now moves for summary judgment dismissing the claim premised upon its Eleventh Affirmative Defense.
Summary Judgment
Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.
Assuming a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine material issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues which require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980). While it is not the best practice, the use of an attorney’s affirmation appending pertinent deposition testimony, documentary evidence, and a verified pleading reciting material facts, is not a fatal procedural flaw in a presentation. Alvarez v Prospect Hospital, 68 NY2d 320, 325 (1986).[2]

Defendant has attached the depositions of Amelia Fabbri, Claimant, [Affirmation in Support of Motion for Summary Judgment by Vincent M. Cascio, Exhibit F]; David Lock, a DOT employee working at the scene of the accident, [ibid. Exhibit G]; Paul Huntley, the driver of the truck that collided with Claimant’s car, [ibid. Exhibit H]; and Darren Heater, the DOT supervisor at the scene, [ibid. Exhibit I]; as well as copies of the verified claim, answer, and Claimant’s bill of particulars. [ibid. Exhibits A, B, C]. A note of issue and certificate of readiness has been filed herein. [ibid. Exhibit D].

Vehicle and Traffic Law §1103(b) provides in pertinent part that the rules of the road[3] and statutes governing motorists generally
“. . . shall not apply to persons, teams, motor vehicles , and other equipment while actually engaged in work on a highway . . . The foregoing provisions of this subdivision shall not relieve any person, or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway from the duty to proceed at all times during all phases of such work with due regard for the safety of all persons nor shall the foregoing provisions protect such persons or teams or such operators of motor vehicles or other equipment from the consequences of their reckless disregard for the safety of others.”[4]

Ordinary negligence will not render a municipality or the State liable under this statute, assuming the State’s agents were actually engaged in highway work as defined therein and as interpreted in the case law. Thus when a county employee was operating a street sweeper as part of maintenance work on a public highway the county would be liable for injuries sustained by a motorist who collided with the sweeper only if the employee was acting with reckless disregard for the safety of others. Riley v County of Broome, 95 NY2d 455 (2000). The companion case to Riley v County of Broome, supra, involved a collision with a snowplow. See Wilson v State of New York, 95 NY2d 455 (2000). In both cases, while the operators’ acts could likely have been viewed as ordinary negligence, they were found not to have acted with reckless disregard for the safety of others. Recklessness “. . . 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 . . . (citation omitted).” Saarinen v Kerr, 84 NY2d 494, 501 (1994).

The threshold issues to determine whether the statute applies are whether the actor is actually engaged in highway work and, if so, whether such conduct is done with reckless disregard for the safety of others. Thus, a town street sweeper who crossed a double yellow line separating two directions of traffic striking the plaintiff’s car, who was traveling from one work site to another, was not actually engaged in highway work, and therefore ordinary negligence principles applied. Davis v Incorporated Village of Babylon, 13 AD3d 331 (2d Dept 2004); see also Marvin v Town of Middlesex, 2002 WL 58928, affd 300 AD2d 1112 (4th Dept 2002)[5].

Claimant argues that Riley and its progeny involve the operation of the work or hazard vehicle, not the safety or configuration of the work site itself. Thus here, where what is alleged is that DOT workers negligently waved Claimant on while outside their work vehicles - if the factual scenario is what the Court has understood it to be - the reckless standard is inapplicable Claimant argues, as what is really involved is the layout of a work site and the failure to exercise due care in setting up the snow removal area. See Newell v State of New York, UID#2001-007-116, Claim No. 93670, Motion No. M-63436 (Bell, J., June 20, 2001)[6]. Counsel argues that “. . . Claimant’s fundamental contention would be the same if Defendant had created a non-vehicular obstruction at the Intersection, such as a pile of snow or a stack of Jersey barriers (i.e., the fundamental nature of the claim is that Defendant breached its duty to maintain the State’s roadways in a reasonably safe condition, and therefore acted negligently, when its employees failed to properly direct traffic around an obstruction, which they created) . . .” [Affirmation in Opposition to Defendant State of New York’s Motion for Summary Judgment by Michael G. Hayes, ¶13].

While this is certainly a beguiling attempt at setting aside the applicability of the statute, it is clear that the statute was not intended to be construed so narrowly. Although it appears that the majority of cases applying the statute have involved the movement of the vehicles themselves, and have not mentioned the “persons, teams” language therein, the words are still plain. See Vehicle and Traffic Law §1103(b). If the “. . . persons, teams, motor vehicles and other equipment . . .” are “actually engaged in work on a highway . . .” at the time of the accident at issue, the State will be liable only for reckless conduct. [See id.]. In those cases where the statute has not been applied that have received appellate court review, the employees were on their way somewhere else for example, or were using vehicles for purposes other than highway work at the time of the alleged misfeasance. See Davis v Incorporated Village of Babylon, supra; Marvin v Town of Middlesex, supra.

Significantly, whether certain behavior can be categorized as “reckless” poses a genuine issue of material fact precluding summary determination, particularly where, as here, the mechanics of the accident - including the location of the equipment and the personnel, and the actions of State personnel at the site - are not established by the movant’s presentation. See Bliss v State of New York, 95 NY2d 911 (2000); New York State Electric & Gas Corp. v State of New York, 14 AD3d 675 (2d Dept 2005); Mendoza v Grace Industries, Inc., 4 AD3d 272 (1st Dept 2004).

Claimant testified at a deposition held on September 21, 2005, concerning her view of the accident occurring on February 20, 2003. [Affirmation in Support of Motion for Summary Judgment by Vincent M. Cascio, Exhibit F]. She indicated that she had been driving for approximately one and one-half miles on northbound Route 9A when she came to its intersection with Stormytown Road. There, she intended to make a left turn across the southbound lanes of Route 9A to complete the turn onto Stormytown Road, and to - ultimately - visit her husband in his nursing home. It was a clear day - warm enough for the snow to be melting - and she was traveling at a speed between 40 and 45 mph as she approached the intersection. She estimated that there was snow piled on the side of the road between one and one and one-half meters high. As she slowed to make the turn from the left lane of northbound Route 9A, she saw workers clearing the snow. She stated that she stopped, and was signaled to go ahead by the workers, and also saw one of the workers mouth the word “go” but did not hear him say the word. As she turned across the southbound traffic of Route 9A, her car was struck by a truck driven by Paul Huntley.

Mr. Huntley indicated that he did not see Claimant’s car until she was directly in front of him in the left lane of southbound Route 9A, at less than 100 feet. [ibid. Exhibit H][7]. Just before seeing Claimant’s vehicle, Mr. Huntley saw a payloader stationed on the median on the southbound side of Route 9A, with its bucket facing north. There was a person in the back of the payloader, the operator of the payloader was facing southbound traffic, and another individual was standing on the southbound median strip with a flag rolled up. It was a “split second” after observing the payloader that he saw the Claimant’s car, attempting to “dart” across the road. Mr. Huntley applied his brakes and turned hard to the right but was unable to avoid a collision.

Darren Heater, a highway maintenance supervisor for the DOT, was responsible, along with his crew of three (3) workers, for the job of clearing snow from the side of the highway on February 20, 2003. [Affirmation in Support of Motion for Summary Judgment by Vincent M. Cascio, Exhibit I]. The three workers were Arnold Folberth, who was operating the payloader, and Don Lounsbery and Dave Lock on traffic control. Mr. Heater testified that workers were wearing orange safety vests and helmets, and that there were no flagging stations set up that day at the intersection. A pickup truck was parked in the shoulder on the “northbound hashmarks between the left hand lane and the left turn lane”, with rotating lights and flashers, to give people advance warning of the work being performed. He indicated that he had decided not to use flagmen because they were not working in the road itself. The truck was used to push the snow off the median away from the intersection, and that other than this truck, and the vehicle in which they arrived at the site, there were no State vehicles there. He testified that he saw Claimant’s car turn into southbound Route 9A without ever stopping.

David Lock, assigned to snow removal for the past 10 years with the DOT, could not recall the specific work he was performing on the day of the accident, except to say that he reported to work that day in a State pickup truck, and was wearing the assigned orange vest and hard hat. [Affirmation in Support of Motion for Summary Judgment by Vincent M. Cascio, Exhibit G]. He recalled two other workers at the site that day, Darren Heater and Donald Lounsbery, and that there was a pickup and a loader at the site. He said he was in front of the pickup truck when he first saw Claimant’s vehicle, in his peripheral vision, and made “a hold back gesture” meaning she should slow or stop her car. He did not see her car stop. Mr. Lock could not remember if he saw Mr. Huntley’s truck “as it was about to impact or if it was impacting,” although he “heard a skid.”

The deposition testimony alone is equivocal, referencing as it does photographs and DOT documents not included with the motion papers, and does not establish all the factual issues. Credibility and comparative fault are also at issue. Based upon the showing here, while the Court agrees that the reckless standard applies because DOT workers were actually engaged in work on a highway - here snow removal - there are triable issues of fact surrounding that determination that cannot be resolved on the papers alone.

Accordingly, Defendant’s motion for summary judgement dismissing the claim is hereby denied.

June 29, 2006
White Plains, New York

Judge of the Court of Claims

[2].“A fair reading of the attorney’s affirmation, the hospital records and the defendant’s deposition testimony compel the conclusion that no material triable issues of fact exist as to the claims of malpractice asserted against the defendant in the amended complaint as amplified by the bill of particulars. The fact that defendant’s supporting proof was placed before the court by way of an attorney’s affirmation annexing deposition testimony and other proof, rather than affidavits of fact on personal knowledge, is not fatal to the motion . . . (citations omitted).”
[3]. Vehicle and Traffic Law, Title VII - Rules of the Road.
[4]. See also Vehicle and Traffic Law §1104 exempting police and other authorized emergency vehicles during emergency operations; and Vehicle and Traffic Law §1202(a) regulating stopping standing and parking from which hazard vehicles - such as street sweepers and snowplows - are exempted under 1103(b) also. “Thus, we conclude that section 1103(b) exempts from the rules of the road all vehicles actually engaged in work on a highway, including the ‘hazard vehicles’ in the cases before us.” Riley v County of Broome; Wilson v State of New York, 95 NY2d 455, 465 (2000).
[5]. Defendant municipality held to ordinary negligence standard, when a pedestrian walking by parked car was struck by the car that was itself struck by snowplow backing up. Trial court said truck not actually engaged in highway work. When accident occurred, the plow was hauling gravel from town storage to the work site 4 miles away from accident site.
[6]. In Newell v State of New York, supra, the trial court denied defendant’s motion for summary judgment finding that ordinary negligence principles - rather than the reckless disregard standard - should apply to the manner in which a DOT highway work crew closed a lane on the interstate highway using a DOT truck. The Court of Claims said that “[t]he means used for blocking the lane of the highway (i.e. a truck) is incidental, not integral, to claimant’s fundamental contentions that inadequate notice and improper funneling techniques were employed. Claimant’s contentions would be essentially the same if defendant had placed a stationary barrier or sign at the point where . . . [the worker’s] truck was located. The purported negligence is not directed at the manner in which the vehicle was operated by . . . [the worker] but at the individual or individuals who designed the work site . . . ” This determination has not been subject to appellate court review.
[7].Throughout the various depositions submitted by Defendant in support of its motion there are references to photographs, and the testimony of the witnesses is explained through photographs presumably of the scene. No photographs are appended as exhibits to this motion.