New York State Court of Claims

New York State Court of Claims

HELWIG v. THE NEW YORK STATE THRUWAY AUTHORITY, #2007-009-014, Claim No. 110114, Motion No. M-72281


Defendant’s motion for summary judgment dismissing the claim based upon the reckless disregard standard of Vehicle and Traffic Law 1103(b) was 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:
BY: Lisa Ruoff Purdy, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
May 15, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this unopposed motion seeking an order of summary judgment dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2

Memorandum of Law 3

In this claim, claimant seeks damages for property damages, and other consequential damages, arising out of an accident which occurred at the Port Byron service area of the New York State Thruway in the Town of Montezuma, Cayuga County, on January 7, 2004. On that date, a snowplow owned by the New York State Thruway Authority was being operated at the service area when it struck a parked tractor-trailer owned by the claimant.

According to the deposition testimony provided by William Daino, the operator of the snowplow (see Exhibit E to Items 1,2), he was plowing snow at approximately 10:30 p.m. on the evening of January 7, 2004 in the Port Byron service area, when his wing plow struck the tractor-trailer owned by claimant, which was parked on the shoulder of the entrance ramp to the service area. According to Mr. Daino’s testimony, it was snowing and blowing, and visibility was poor at the time of this accident. Mr. Daino testified that at the time, he was actually in the process of plowing snow, and that both his main plow and wing plow were in the down position, when he struck claimant’s vehicle.

The testimony of Mr. Daino at his deposition is undisputed, and has been corroborated by the internal investigation conducted by the defendant (see Exhibits D-4, D-5 and D-6).

Defendant now seeks summary judgment dismissing the claim, contending that the “reckless disregard” standard set forth in Vehicle and Traffic Law § 1103(b) applies to these undisputed facts, and that no fair view of the evidence could possibly result in a determination that the snowplow operator acted with reckless disregard for the safety of others when he struck claimant’s vehicle.

Pursuant to § 1103(b) of the Vehicle and Traffic Law, the normal rules of the road do not apply to “hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway,” and that the operator of such a vehicle is only responsible for the “consequences of their reckless disregard for the safety of others.” Snowplows engaged in snow removal operations are considered hazard vehicles within the meaning of § 1103(b) (Riley v County of Broome, 95 NY2d 455). Operators of snowplows are therefore exempt from the normal rules of the road and are liable only for conduct that constitutes reckless disregard for the safety of others. 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” (Szczerbiak v Pilat, 90 NY2d 553, 557).

On a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter law, presenting sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851). Once the showing has been made, the burden then shifts to the party opposing the motion who must then produce sufficient evidentiary proof to establish the existence of material issues of fact which would require a trial (Alvarez v Prospect Hospital, 68 NY2d 320). Summary judgment is considered a drastic remedy which deprives a party of its day in court and therefore 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).

In this matter, the undisputed deposition testimony of the snowplow operator establishes that Mr. Daino was actually engaged in plowing snow at the time that he struck claimant’s vehicle. His actions, however, in striking the side of claimant’s vehicle with his wing plow at nighttime during snowy and blowing conditions, can at best be characterized as negligence. Therefore, even if all relevant facts are viewed in a light most favorable to claimant, the actions taken by Mr. Daino represent, at most, ordinary negligence, and such actions cannot possibly rise to the level of recklessness required by § 1103(b).

Therefore, in the absence of any proof demonstrating a reckless disregard for the safety of others, defendant’s motion for summary judgment dismissing the claim must be granted.

Therefore, it is

ORDERED, that Motion No. M-72281 is hereby GRANTED; and it is further

ORDERED, that Claim No. 110114 is hereby DISMISSED.

May 15, 2007
Syracuse, New York

Judge of the Court of Claims