LETTERIO v. THE STATE OF NEW YORK , #2007-010-036, Claim No. 110626
No liability, snowplow driver not reckless.
|TODD LETTERIO AND ROBIN LETTERIO
1 1.Upon defendant’s motion, the caption was amended to reflect the only
proper party defendant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Terry Jane Ruderman
TENDY & CANTORBy: William Tendy, Jr., Esq.
HON. ANDREW M. CUOMO
Attorney General for the
State of New
YorkBy: J. Gardner Ryan, Assistant Attorney General
September 6, 2007
See also (multicaptioned
Todd Letterio, hereinafter claimant,
damages for injuries he sustained on December 20, 2004 in a motor vehicle
accident on Route 82 in East Fishkill, New York.
At approximately 9:30 a.m., claimant was driving his pickup truck in the
southbound lane of Route 82. Route 82 has one northbound lane and one
southbound lane separated by a double yellow line. As claimant proceeded into a
curve on the roadway, a New York State Department of Transportation (DOT)
snowplow was traveling in the northbound lane and crossed over into the oncoming
southbound lane and struck claimant’s vehicle. Claimant contends that the
driver of the plow was proceeding in a reckless manner at an excessive rate of
speed and attempting to plow the center dividing line in a curved area of
roadway. Defendant contends that its driver was not speeding and that, due to a
patch of ice, the plow skidded into claimant’s lane of traffic. Defendant
maintains that its driver was not reckless and that, therefore, no liability
Claimant testified that on the morning of December 20, 2004, he was returning
home from his employment as a technician on the night shift for the Metro North
Railroad. After traveling approximately 200 feet southbound on Route 82, as
claimant drove into a turn, he was struck by a snowplow that had driven into
claimant’s lane. Claimant testified that the weather was cold and clear.
The road had been plowed and there was slush in some areas. Claimant did not
see the plow until he was into the turn and he has no specific recollection of
the events immediately prior to impact or thereafter.
Samuel J. Matychak, Jr., the driver of the DOT snowplow, testified that he was
traveling northbound with the wing and plow down, covering the entire northbound
lane from the center line through a portion of the shoulder. The left edge of
the plow was clearing the center line as the spreader dispensed abrasives from
the rear of the truck. As the road curved, the truck suddenly hit packed ice
and slid to the left toward oncoming traffic and hit claimant’s
Matychak estimated that he had been traveling at a speed of 21 mph. He
testified that as he started to skid, he tried to warn claimant of the impending
collision by waving at claimant. The act was fruitless. Matychak then
regripped the wheel and steered to the right. The plow broke off from the mount
as a result of the collision.
On cross-examination by defendant, Matychak testified that he was supposed to
clear the center line on a long, straight road, if there were no cars in the way
He further stated that he was not
supposed to plow the center line on a curved road because he would not be able
to see if there were any oncoming cars (T:47, 49). Cross-examination of Matychak
continued as follows:
This area, was it so curvy that it was unsafe to plow the center?
At middle [sic] of the night there ain’t no cars.
Right. You could see ahead of you when you were on this curve, couldn’t
Yes, around the curve, yes.
THE COURT: What is that, could you please repeat that? Can you repeat your
THE WITNESS: Yes.
THE COURT: You could see cars ahead of you in this curve?
THE WITNESS: Not on the curve.
THE COURT: But you plowed the center anyway?
THE WITNESS: That’s my job.
THE COURT: So you did plow – you plowed the center? You plowed the
THE WITNESS: Yes.
BY MR. RYAN:
Sammy, so as you understood your job, part of it was to plow the center line in
this area, right?
This was not an area that you were worried about when you plowed the center,
right; you just had to be careful?
Now, when this curve in the road [sic], it wasn’t a real sharp curve, was
It was a big sweeping curve?
And you could see a distance ahead of you when you were driving around it,
And you could see far ahead of you to see any traffic that was coming,
If you had to, you could move over, right?
By the way, how fast were you driving when you were plowing?
21 miles per how [sic].
You say 21 –
Did you look at the speedometer, or is that what you tried to do all the
I keep look – it’s so much weight, pushing 21 miles per hour.
That’s about the best you can do, right?
Jeffrey Estremera, who was driving behind the snowplow, was subpoenaed to
testify. He stated that he was traveling behind the snowplow at a speed of
“approximately 20, 25 miles per hour” (T:64, 65) and at about the
same rate as the plow. He observed the plow suddenly skid into the left lane.
Estremera then reduced his speed and he also skidded on the icy pavement before
he was able to bring his own vehicle to a stop.
An affidavit of Jeffrey Sauter, an employee of an auto parts store located
near Route 82, was received into evidence (Ex. 41). The parties agreed that if
Sauter had been called as a witness, he would have testified that, at
approximately 9:30 a.m., he was looking out onto Route 82, which was south of
the store, when he observed the DOT truck, with its snowplow down heading
northbound, pass the store.
“It drew my attention because it was traveling at an excessive rate of
speed, easily in excess of 50 miles per hour, in my opinion. The speed limit in
this area is 35 miles per hour. Upon observing this vehicle I immediately
thought that it was dangerous to travel that fast, especially for the weather
conditions. I even commented about that to another employee. A second later I
heard an impact and looked to the north and saw that the truck and plow had
collided with another vehicle.”
Detective Matthew F. Orsino, a detective with the East Fishkill Police
Department, responded to the accident scene. Orsino testified that he observed
the position of both vehicles and examined the tire marks on the road. He took
photographs of the scene and spoke to both drivers. Based upon his
investigation and observations, Orsino concluded that the accident happened
because the plow had proceeded into the southbound lane.
Sergeant Kevin Keefe testified that he has been employed by the East Fishkill
Police Department for 23 years and on December 20, 2004 he was the patrol
supervisor on the day shift. He responded to the accident and observed the
condition of the road and the vehicles. Keefe concluded that the cause of the
accident was the extension of the front blade of the plow over the center line
into the southbound lane. He examined the road and observed, as depicted on
exhibit 6, that the shoulder had not been plowed at the point of impact. Since
the wing of the plow extended to the right, Keefe deduced that the blade of the
plow had to have been over the center double yellow line. Keefe also testified
that the skid marks of the plow were consistent with forward skidding. The tire
marks indicated to Keefe that the plow was left of the double line at the
commencement of the skid (Ex. 12).
It is undisputed that at the time of the accident defendant’s snowplow
operator was “actually engaged in work on a highway” (Vehicle and
Traffic Law § 1103[b]). Therefore, in order for claimant to prevail on his
claim, he must show that defendant’s driver acted with “reckless
disregard for the safety of others” (id.; see Primeau v
Town of Amherst, 17 AD3d 1003, affd 5 NY3d 844; Riley v County of
Broome, 95 NY2d 455, 460-65; Haist v Town of Newstead, 27 AD3d
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, upon consideration of all the evidence,
including listening to the witnesses testify and observing their demeanor as
they did so, the Court finds that the credible evidence established that the
snowplow operator was traveling at a speed of less than 25 mph as he attempted
to clear the center line of the roadway when he suddenly encountered a patch of
ice which caused him to slide toward oncoming traffic. Notably, the vehicle
directly behind the plow was traveling at a speed of 20, 25 mph and encountered
ice at the same location and skidded on the icy pavement before the driver was
able to bring his vehicle to a stop.
The operator testified that, while he was not supposed to clear the center
line of snow in a curved area of roadway because he would not be able to see
oncoming cars, he maintained that the curve was a sweeping curve, as opposed to
a sharp curve, and that he could see oncoming traffic at a distance ahead of
The driver’s attempts to warn
claimant or to regain control of the snowplow prior to the collision were
futile. Nonetheless, the Court finds that the driver’s conduct did not
rise to the level of recklessness (see Bliss v State of New York
95 NY2d 911 [Court of Appeals found a triable issue as to whether the driver had
acted recklessly where he pled guilty to unsafe backing down a narrow incline on
a bridge with no rearview mirror on a heavily traveled interstate highway and
had also violated several New York State Thruway Authority safety directives];
Ring v State of New York
, 8 AD3d 1057 [Court of Claims finding that
snowplow operator was not reckless was fully supported by the record];
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]).
LET JUDGMENTS BE ENTERED DISMISSING CLAIM NOS. 110626 AND 110651.
September 6, 2007
Plains, New York
HON. TERRY JANE RUDERMAN
Judge of the Court of
. The claim of Robin Letterio,
claimant’s wife, is derivative. Claim No. 110651, joined for trial, is a
subrogation claim. The trial of these claims was bifurcated and this Decision
pertains to the issue of liability.
. All references to the trial transcript are
preceded by the letter “T.”
. Even if the snowplow operator should not
have attempted to clear the center line of the roadway in this area, any
“alleged violations of internal company rules [did not] rise to the
required level of reckless disregard” (see Green v
, 299 AD2d 636, 638).