4) Reply Affirmation of Thomas G. Ramsay, Esq., dated June 12, 2009, with
attached exhibit. In their claim filed on September 10, 2007, Claimants Erwin F.
Conley and Sally Conley allege that, on February 16, 2007, Erwin F. Conley was
injured when his vehicle, a Dodge van, was struck by a New York State Department
of Transportation snowplow. Claimant Erwin F.
alleges that, at the time of the
accident, he was parked on the east side of Route 98 in the Village of Albion,
New York. He alleges that he was sitting alone in his vehicle and talking to an
acquaintance, Angel Javier, who was shoveling snow on the nearby sidewalk when a
snowplow owned by Defendant and operated by Defendant’s employee Robert H.
VanWuyckhuyse, struck Claimants’ vehicle from behind. There is no dispute
that the side or wing plow of the State vehicle struck the left rear corner of
With this motion, Defendant requests summary judgment dismissing the claim,
asserting that the Vehicle and Traffic Law provides immunity for simple
negligence and that Claimant cannot demonstrate that the driver of the snowplow
acted with recklessness.
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 Hosp., 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 Erwin F.
Conley, his acquaintance Angel Javier, Scott Roberts (another witness to the
incident), the snowplow operator Mr. VanWuyckhuyse, and his supervisor Alan
Derisley. 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. Mr. VanWuyckhuyse was on his
“beat” and was plowing and salting his route. The fact that he may
have lifted, or been in the process of lifting, his plow for the purposes of
crossing a bridge over the Erie Canal at the precise moment the accident
occurred does not alter the fact that he was “engaged in work on a
highway” at the time of the accident (McDonald v State of New York,
176 Misc 2d 130).
Here, Claimants attempt to demonstrate that a question of fact exists as to
whether the snowplow operator acted with reckless disregard in several ways.
First, they allege that the snowplow operator was speeding. The speed limit was
30 miles per hour and, although the snowplow operator testified that he was
traveling 15 to 18 miles per hour at the time of the accident, Scott Roberts
estimated his speed at between 35 and 40 miles per hour. Further, Claimants
allege that the snowplow operator looked fatigued and assert that he was plowing
too close to the line of cars along the street. As indicated in Gawelko v
State of New York, (184 Misc 2d 581) the mere fact that a snowplow may have
left his lane of travel while plowing is not indicative of recklessness, because
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 v New
York State Thruway Authority, Ct Ct, September 23, 2002 [Motion No.
M-65187], Minarik, J., UID No. 2002-031-046).
Similarly, in this matter, while Claimants may have demonstrated that Mr.
VanWuyckhusye was negligent, there is nothing in the record from which I can
determine that Mr. VanWuyckhuyse acted recklessly. Looking at the facts in a
light most favorable to Claimant, 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.
The claim is dismissed and the Clerk of the Court is directed to close the