New York State Court of Claims

New York State Court of Claims

JOSEPH v. THE STATE OF NEW YORK, #2007-030-561, Claim No. 111395, Motion Nos. M-73154, CM-73653


Synopsis


Defendant’s motion for summary judgment dismissing claim granted. Vehicle and Traffic Law §1103(b) concerning vehicles actually engaged in work on a highway at the time of an accident applies. Defendant’s employee was operating a highway maintenance vehicle with flashers, warning signs, and an escort, as he mowed the grass. Even viewing the facts presented in the light most favorable to the claimant, actions of the DOT employee in backing up his tractor in an area near a breakaway pole are at worst, negligent, not reckless, as a matter of law

Case Information

UID:
2007-030-561
Claimant(s):
DAVID A. JOSEPH
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
JOSEPH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
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):
111395
Motion number(s):
M-73154
Cross-motion number(s):
CM-73653
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
KRIEGER, WILANSKY & HUPART, ESQS.By: BRETT R. HUPART, ESQ
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JUDITH McCARTHY, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
September 10, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on Defendant’s motion for summary


judgment dismissing the claim [M-73154] and on Claimant’s cross-motion to amend his claim


[CM-73653]:

1-4 Notice of Motion; Affidavit by George Gaborow, P.E.; Affirmation in Support by Judith C. McCarthy, Assistant Attorney General and attached exhibits; Memorandum of Law

5-7 Notice of Cross-Motion; Amended Notice of Cross-Motion; Attorney’s Affirmation by Brett R. Hupart, attorney for Claimant and attached exhibits

  1. Affirmation in Opposition and Reply by Judith C. McCarthy, Assistant Attorney General
9,10 Filed papers: Claim, Answer

David Joseph alleges in his claim that on September 29, 2003 he was seriously injured in an accident on the Cross County Parkway, at or near its intersection with the Wartburg ramp, involving the car in which he was driving and a Ford tractor bearing identification number 83-7803 operated by one Sidney Brown in the course of his employment and owned by either the State of New York - through its agent the New York State Department of Transportation (hereafter NYSDOT) - or the New York State Thruway Authority (hereafter NYSTA). Specifically, claimant alleges that at approximately 1:40 p.m. on that day Sidney Brown struck a light pole on the side of the road with the Ford tractor, causing the light pole to fall into the street. Thereafter, claimant was caused to swerve and drive off the road and be injured. Mr. Joseph seeks damages “in an amount in excess of all lower courts that would otherwise have jurisdiction herein.” [See Claim Number 111395]. In their Answer, in addition to general denials, Defendants assert nine affirmative defenses, including a sixth affirmative defense alluding to the statutory standards provided for in Vehicle and Traffic Law §1103(b) concerning vehicles actually engaged in work on a highway at the time of an accident.
MOTION FOR SUMMARY JUDGMENT - VEHICLE AND TRAFFIC LAW §1103(b)
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 portions of the depositions of David A. Joseph, Claimant, [Affirmation in Support of Motion for Summary Judgment by Judith C. McCarthy, Assistant Attorney General, Exhibit D]; Sidney Brown, the DOT employee who struck the light pole, [ibid. Exhibit E]; as well as copies of the claim, answer, and Claimant’s bill of particulars. [Ibid. Exhibits A, B, C]. The present motion is made after full discovery on the claim.

Vehicle and Traffic Law §1103(b) exempts certain highway workers and their employers from liability for merely negligent acts causing injury, and the application of the general “rules of the road”, provided they are “. . . actually engaged in work on a highway . . . ” at the time of an accident, but does not “. . . 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.” Assuming the employee is a covered worker the Vehicle and Traffic Law provision provides a standard of care against which the driver’s conduct is measured. Defendant acknowledges that Mr. Brown was an employee of the New York State Department of Transportation, on September 29, 2003.

During his deposition, Mr. Brown indicated that in the course of his employment as a highway maintenance worker for the NYSDOT he was engaged in a continuing project of mowing areas adjoining the Cross County Parkway on September 29, 2003, as well as grassy areas in the center median dividing the two traffic directions. [See Affirmation by Judith McCarthy, Exhibit E]. As he mowed, he was followed by a large double dump truck with a sign saying “tractor mowing.” [Ibid.]. The tractor he was operating had four-way rotating flashing lights on the roof, and he was traveling at one or two miles per hour on the grassy area next to the parkway at the time of the accident, indeed the fastest he traveled in the tractor was 18 miles per hour when he was on the actual road. [Ibid.] The top speed of the tractor might be 20 miles per hour. [Ibid]. Mr. Brown said that as he was “going around the light pole . . . it seemed like a wheel slipped and . . . [he] hit the base of the light pole.” [Ibid.]. Within “almost a minute” of the impact, Mr. Brown realized that the pole he had hit was shaking, and he “jumped in the middle of the road to stop traffic” because he realized that the pole was going to fall. [Ibid.]. The light pole fell across the right lane and part of the left. [Ibid.]. He said that it was “. . . a brake (sic) away pole. It shattered. Like one piece was still holding on. That’s why it took so long to fall.” [Ibid.]. Several cars stopped. Claimant’s car drove off the road coming to a stop in some bushes. [Ibid.].

Mr. Joseph said - in the portions of the deposition submitted - that he drove his car off the roadway as he observed the tractor hit the light pole, and the light pole falling down. [See Affirmation by Judith McCarthy, Exhibit D] He was not certain how much time elapsed between the tractor’s impact with the light pole, and the pole falling down. [Ibid.]. He had been traveling in the left lane of the eastbound Cross County Parkway, on his way to the entrance to the southbound Hutchinson River Parkway, at an estimated speed of between 20 and 30 miles per hour. [Ibid.]. He estimated that when he veered off the parkway, he was traveling at a speed of 30 miles per hour. [Ibid.].

Defendant argues that based upon these facts concerning the happening of the accident, it cannot be held as a matter of law that the conduct described is reckless, or that the State of New York should be held liable.

Claimant indicates first that recklessness is not the appropriate standard of care because “defendant’s vehicle is not deserving of the exemption contained in Vehicle and Traffic Law §1103(b)”, and ordinary negligence principles apply. Claimant then argues that even if the standard is recklessness, Sidney Brown’s actions rose to this level.

Ordinary negligence will not render a municipality or the State liable under Vehicle and Traffic Law §1103(b), 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).

Claimant argues that the tractor does not fall under the exemption for vehicles actually engaged in work on a highway, because the “subject vehicle was not on the highway but was in an area adjacent to it.” [Attorney’s Affirmation by Brett R. Hupart, counsel for claimant, ¶17]. In this connection, claimant avers that only the hazard vehicles engaged in hazardous operations are exempted from ordinary negligence when the work they are performing is on or adjacent to a highway, but “other vehicles”, such as the tractor at issue here, do not benefit from the exemption when the work was being performed adjacent to the highway. This is a strained interpretation of the statute, and not in conformance with the applicable law.

Ibarra v Town of Huntington, 6 AD3d 391 (2d Dept 2004) and O’Keeffe v State of New York, 40 AD3d 607 (2d Dept 2007), two cases cited by claimant in support of the foregoing, are not applicable as it appears from the limited facts recited in both cases there was a failure to meet the appropriate evidentiary burdens on summary judgment. Thus, in Ibarra v Town of Huntington, supra, the municipality failed to make a prima facie showing that the street sweeper involved in a collision with the plaintiff there was actually engaged in a hazardous operation at the time of the accident, in applying for summary judgment dismissing the complaint. In the Town’s brief to the appellate division the underlying facts are recited somewhat, revealing that there was deposition testimony there to the effect that the street sweeper was parked at the side of the road with its lights off, as opposed to working on the street, when the accident occurred. [See 2004 WL 1541199].

Similarly, in O’Keeffe v State of New York, supra, the State did not establish its entitlement to judgment as a matter of law because it did not show whether the snowplow operator was actually engaged in work on a highway when the collision with a vehicle operated by the plaintiff occurred. Indeed, in the trial court determination denying summary judgment in O’Keeffe v State of New York, supra, the court said that the issue was whether the snowplow operator was traveling to and from a work site, rather than actually patrolling his assigned route. [See O'Keeffe v. State of New York , UID # 2006-010-007, Claim No. 109135, Motion Nos. M-70815, CM-71032 (Ruderman, J., March 22, 2006)].

More directly on point as to the applicability of the statutory standard of care is New York State Electric and Gas Corp. v State of New York, 14 AD3d 675 (2d Dept 2005), wherein a state employee was mowing a grassy area along a state highway when his tractor struck a guide wire attached to a utility pole owned by claimant, causing the pole to fall down. While the trial court had granted summary judgment to claimant premised on the inapplicability of Vehicle and Traffic Law §1103(b) to other than multi-vehicle collisions as opposed to mere property damage, and a finding that the defendant’s employee had been negligent [see New York State Electric and Gas Corp. v State of New York, 194 Misc2d 356 (Ct Cl 2002)], the appellate division confirmed that the defendant’s employee was actually engaged in work on a highway while mowing the grass alongside the highway, and that the statutory standard applied. The appellate division then, however, indicated that there were triable issues of fact as to whether the employee acted with reckless disregard for the safety of others, preventing an award of summary judgment to claimant. In so doing, the court referred to Riley v County of Broome, supra, and two more cases supporting the defendant’s position here: that the standard for reviewing the conduct is the statutory one of recklessness, and that the conduct at issue, as demonstrated by evidence before those courts, was not reckless. See, Wenger v Broome County Govt., 296 AD2d 642 (3d Dept 2002) lv dismissed 99 NY2d 530 (2002)[3]; Farese v Town of Carmel, 296 AD2d 436 (2d Dept 2002).[4]

In the partial depositions presented to the court here, the mechanics of the accident are not in issue, and the acts described - Mr. Brown driving too close to the pole he knew was a breakaway pole, reacting to his tractor’s apparent unsteadiness, resulting in striking a pole, and his immediate attempt to warn the public of the hazard - do not rise to imposing liability under reckless standards. Moreover, the statements in a sworn affidavit by Mr. Joseph to the effect that he saw a tractor with a lawn mower attached backing up on the side of the highway, pushing the mower into a light pole, and the pole falling onto the roadway, and that his was the only car on the roadway; coupled with the knowledge on Mr. Brown’s part that the pole was a breakaway pole designed to give way on minimal contact still do not present material issues of fact requiring a trial. [See Attorney’s Affirmation by Brett R. Hupart, Exhibit 1].

Whether certain behavior can be categorized as “reckless” may pose in some cases a genuine issue of material fact precluding summary determination, particularly where, for example, the mechanics of the accident present a meaningful dispute. 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); Fabbri v State of New York, UID # 2006-030-550, Claim No. 110480, Motion No. M-71417 (Scuccimarra, J., June 29, 2006); cf. Farese v Town of Carmel, supra; Alexander v State of New York, UID # 2006-033-192, Claim No. 110152, Motion Nos. M-71080, M-71121, M-71820 (Lack, J., June 29, 2006)[5]; Mendez v State of New York, UID # 2004-010-006, Claim No. 105714, Motion No. M-67702 (Ruderman, J., February 17, 2004)[6]. That is simply not the case here.

In this case, Defendant’s employee was operating a highway maintenance vehicle with flashers and warning signs and an escort, as he mowed the grass on the side of the highway, and is thus entitled to the qualified exemption from the application of the traffic laws provided by Vehicle and Traffic Law §1103(b). The actor’s conduct is evaluated in terms of recklessness, rather than mere negligence, accordingly. In this case, even viewing the version of events presented by claimant, the actions of the DOT employee in backing up his tractor in an area with a breakaway pole are at worst, negligent, not reckless as a matter of law. Claimant has failed to rebut the prima facie showing made by Defendant of entitlement to judgment dismissing the claim summarily. Farese v Town of Carmel, supra; Alexander v State of New York, supra; Mendez v State of New York, supra.

Accordingly, Defendant’s motion for summary judgment dismissing the claim is hereby granted, and Claim number 111395 is hereby dismissed in its entirety. The remaining applications are herewith denied as moot.


September 10, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
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]. After trial, the court determined that there was no evidence that the snowplow operators acted recklessly. Plaintiff was in bed asleep when his car, parked in his driveway, was damaged. The theory was that snow or ice or some object was propelled onto plaintiff’s property by the snow plowing operation.
[4]. Here, the appellate division reversed the trial court’s denial of summary judgment dismissing the complaint. Defendants established their entitlement to judgment as a matter of law, and plaintiff failed to raise a triable issue of fact as to whether “the tractor was being operated in reckless disregard of others resulting in a risk so great as to make it highly probable that harm would follow . . . (citations omitted).” Farese v Town of Carmel, supra, at 437. The facts indicated are that the plaintiff was riding his motorcycle along a highway when he came upon a Town mower mowing at the highway guardrail, and partially on the road pavement, working without any signs posted and without an escort. Plaintiff had to bring his motorcycle to the ground, he alleged, to avoid colliding with the tractor.
[5].In Alexander v State of New York, supra, the trial court found as a matter of law that the conduct described was, at most, negligent, not reckless, when the State employee engaged a safety bar on his mower as he approached a light pole, but the bar became unlatched as he mowed on uneven ground, and a wing mower came into contact with the light pole which fell on a car driving in the middle lane of the state highway. The court said that even if the worker had not engaged the safety properly, such a failure would be merely negligent.
[6]. Claimant was driving in the right lane, defendant’s snowplow was plowing snow in the left lane at a speed of less than 20 miles per hour with headlights, taillights and emergency lights activated. Several cars passed the snow plow in the right lane. While claimant tried to pass on the right, the plow moved into the middle lane, and the blade came into contact with claimant’s car. Claimant argued that there was a question of fact as to whether the speed used was in excess of what was safe because it prevented plow from seeing other vehicles and thus presented an issue of recklessness. Court found that State established its entitlement to judgment as matter of law, and that claimant had failed to raise a triable issue of fact.