New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2008-031-071, Claim No. 111508, Motion No. M-75404


Viewing evidence in light most favorable to Claimant, there is no indication that a snowplow operator acted with reckless disregard for the safety of others. Defendant’s motion for summary judgement is 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:
Defendant’s attorney:
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 30, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Defendant for summary judgment dismissing the claim:
1) Notice of Motion, filed July 30, 2008;
2) Affirmation of Thomas G. Ramsay, Esq., dated July 29, 2008 with attached exhibits;
3) Affirmation of Frank V. Zinni, Esq., dated September 19, 2008, with attached exhibits;
4) Reply Affirmation of Thomas G. Ramsay, Esq., dated October 7, 2008;
5) Supplemental Affirmation of Frank V. Zinni, Esq., dated October 14, 2008, with attached exhibit. In their claim filed on October 17, 2005, Claimants Sandra J. and James C. Smith allege that on January 12, 2004, Sandra Smith was driving south on Route 63 in the town of Oakfield, New York, when she encountered a State-owned and operated snowplow traveling north. According to Claimant Sandra Smith,[1] as the snowplow approached, it crossed over the center line of the highway and partially into Claimant’s lane of travel. Claimant alleges that she swerved to the right to avoid the plow and lost control of her car in the slush that had accumulated on the shoulder of the southbound lane. She crossed over the center line herself and collided with a car that had been following the snowplow in the northbound lane.

With this motion, Defendant requests summary judgment dismissing the claim, asserting that the Vehicle and Traffic Law provides immunity for simple negligence and Claimants have failed to allege and cannot demonstrate that the driver of the snowplow acted with recklessness. Alternatively, Defendant also argues that, in their notice of intention Claimants alleged only negligence. Accordingly, Defendant argues that any cause of action based upon reckless disregard is time-barred as it was not preserved by the notice of intention.

Initially, I note that I find no merit to Defendant’s argument that the claim is time-barred because the notice of intention mentions only negligence and not recklessness. While some courts have discussed this issue and some have placed a duty on defendant to assert the application of the statutory reckless standard as an affirmative defense, I am unaware of any case that requires a claimant to plead it (see Culhane v State of New York, 180 Misc 2d 61; Yousef v Verizon Inc., 33 AD3d 315).

Section 1103(b) of the Vehicle and Traffic Law states that the normal rules of the road shall not apply to “hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway,” however, the operator of such vehicles has the “duty to proceed at all times during all phases of such work with due regard for the safety of all persons” and shall be responsible for the “consequences of their reckless disregard for the safety of others.” Snowplows engaged in snow removal operations are hazard vehicles within the meaning of Section 1103(b) and, therefore, exempt from the normal rules of the road and liable only for conduct that constitutes reckless disregard for the safety of others (Riley v County of Broome, 95 NY2d 455). 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 (citations omitted)” (Szczerbiak v Pilat, 90 NY2d 553, 557).

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial (Alvarez v Prospect Hospital, 68 NY2d 320). Summary judgment is a drastic remedy which deprives a party of its day in court and 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; Epstein v Scally, 99 AD2d 713).

I have been presented with portions of the deposition testimony of Sandra Smith, her passenger (and daughter) Rebecca Scroger, the snowplow operator Thomas Dumstra and a non-party witness, Charles Guzdek, Jr. In addition, I have the MV-104A Police Accident Report, pleadings and photographs of the accident scene. I find that there is no question as to the application of the statutory reckless standard. The State snowplow was “actually engaged in work on a highway” at the time of the accident. I also note that there was no contact between the state snowplow and Claimant’s vehicle. In fact, it appears that Mr. Dumstra, the driver of the snowplow, was not even aware that an accident occurred until several months later.

Here, Claimant’s demonstration of recklessness is limited to the allegations that, for some unspecified amount of time, the snowplow encroached some unspecified distance into Claimant’s lane of travel. As indicated in Gawelko v State of New York (184 Misc 2d 581), the mere fact that a snowplow may have crossed the center line while plowing is not indicative of recklessness and, in that case, the snowplow was alleged to have actually collided with Claimant’s vehicle. Judge Donald J. Corbett, Jr. nonetheless found this to be, at most, mere negligence and determined that there had been no showing that the driver had disregarded a known risk as to make it highly probable that harm would follow (see also Nationwide Insurance Company a/s/o Mohanakrishnan Menon v New York State Thruway Auth., Ct Cl, September 23, 2002 [Motion No. M-65187], Minarik, J., UID No. 2002-031-046).

Similarly, here there is nothing in the record from which I can determine that Mr. Dumstra acted recklessly. At most, Claimants have demonstrated possible negligence on Defendant’s part. Looking at the facts in a light most favorable to Claimants as I must in this motion for summary judgment, I can conceive of no fair view of the evidence that could lead to the conclusion that the plow operator ignored a grave risk likely to cause harm.

Based upon the foregoing, it is hereby

ORDERED, that Defendant’s motion for summary judgment is granted and the claim is hereby dismissed.

December 30, 2008
Rochester, New York

Judge of the Court of Claims

[1].Claimant James C. Smith’s claim is entirely derivative and, unless otherwise specified, any reference to Claimant refers to Sandra J. Smith.