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
, 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
NY2d 320, 325 (1986).
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.
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.
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
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
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
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
, 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
, 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
; Farese v Town of Carmel
AD2d 436 (2d Dept 2002).
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,
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
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);
. Farese v Town of Carmel
, supra; Alexander v State of
, UID # 2006-033-192, Claim No. 110152, Motion Nos. M-71080,
M-71121, M-71820 (Lack, J., June 29, 2006)
Mendez v State of New York
, UID # 2004-010-006, Claim No. 105714, Motion
No. M-67702 (Ruderman, J., February 17, 2004)
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.