Opinion
15709/05.
Decided on June 5, 2006.
Osorio Associates, LLC Attys. For Pltf., New York.
Bernis E. Shapiro, Corporation Counsel Atty. For Deft., New Rochelle, New York.
This is an action to recover for personal injuries allegedly sustained by plaintiff on February 8, 2005, as a result of the vehicle she was driving having been struck by defendant City of New Rochelle's sanitation truck, driven by defendant Bowen, while the latter was engaged in street garbage collection. Plaintiff now is moving for partial summary judgment against defendants on the issue of negligence only, arguing that the accident had occurred on Coligni Avenue, a two-way roadway, with one lane in each direction, and that it is undisputed that the sanitation truck had been "on the wrong side of the street collecting garbage" at the time of the collision, which plaintiff submits demonstrates liability as a matter of law.
Defendant vigorously opposes the motion and argues that plaintiff mistakenly has applied an ordinary negligence standard to the facts at bar where the proper standard to be applied is that of gross negligence, in accordance with Vehicle and Traffic Law Section 1103, subdivision (b). Moreover, defendants argue that the submitted opposition affidavits of defendant Bowen and Michael DeJesus, a sanitation worker who at the time of the accident had been assigned to the truck involved, raise triable issues of fact. Bowen avers that at the time of the accident the sanitation truck had illuminated headlights, tail lights and two strobe lights, one on each side of the rear of the truck, and that before crossing the road he had checked both of his side mirrors for traffic and to see whether DeJesus, who had been on the opposite street side, had stepped out to stop traffic. Not seeing traffic or DeJesus in the right side mirror stopping traffic, Bowen avers that he then put on his right turn signal and slowly moved the truck across the road to the right lane. He claims that the truck's front bumper was just over the middle of the street by about one foot when plaintiff's vehicle, which was attempting to pass the truck, came into contact with the bumper.
DeJesus avers that while the truck was on the left side of Coligni Road collecting garbage, he was standing on the right side of the road. After the last can on the left side of the road was dumped, DeJesus states that he "turned around to stop traffic so that the truck could return to the right side of the street. At this point, [he] saw one car approaching in the right lane. At about this same time, Mr. Bowen started to move the truck to the right side of the street. The approaching [plaintiff's] car had not reached the rear of the truck where [he] was standing when [he] put up [his] hand to stop the car; but the car refused and continued driving on." As the truck slowly had crossed over the middle of the street, DeJesus states the left side of plaintiff's car scraped against the truck's bumper.
The foregoing, defendants contend, raise triable issues of fact as to whether defendants' behavior was reckless and whether plaintiff negligently contributed to the happening of the accident, thus precluding judgment.
Initially, this Court finds that defendants correctly maintain that the higher negligence standard of gross negligence as provided in Vehicle and Traffic Law Section 1103, subdivision (b), applies to this action. That statute applies to "motor vehicles . . . actually engaged in work on a highway . . ." V T § 1103, subd, (b); see Skolnick v. Town of Hempstead, 278 AD2d 481 (2nd Dept. 2000); Levine v. GBE Contracting Corp. , 2 AD3d 596 (2nd Dept. 2003). It is not disputed that the sanitation truck here in issue actually was engaged in street garbage collection at the time of this accident and, while no case law apparently exists applying V T § 1103, subd. (b) to sanitation trucks actually engaged in work, it is clear to this Court that the statute applies to same. Cf. Nationwide Mut. Ins. Co. v. Town of Cheektowaga , 11 Misc 3d 1064(A) (Buff. Cty. Crt. 2006).
Accordingly, triable issues of fact and credibility issues precluding judgment exist as to whether a sanitation worker had directed plaintiff to stop and, if so, whether plaintiff is comparatively negligent for this crash, see Larsen v. Spano , 9 AD3d 351 (2nd Dept. 2004); Marquis v. Eisenstein , 5 AD3d 741 (2nd Dept. 2004); Schager v. Lino Bordi, Inc. , 2 AD3d 828 (2nd Dept. 2003), and whether defendants' conduct was reckless under the circumstances presenting, resulting in a risk so great as to make it highly probable that harm would follow. See New York State Elec. Gas Corp. v. State of New York , 14 AD3d 675 (2nd Dept. 2005); Mendoza v. Grace, Industries Inc., 4 AD3d 272 (1st Dept. 2004).
Furthermore, the Court sua sponte strikes the ad damnum clause requesting one million dollars damages as violative of CPLR 3017, subdivision (c). Within twenty (20) days after the date of this Order, plaintiff shall serve an amended complaint with a Wherefore Clause in accordance with the statutory requirements.
Finally, the parties shall appear before the undersigned, as previously scheduled, at 9:30 a.m. on October 2, 2006, for a compliance conference. All discovery must be completed by that date. Any discovery not completed may be deemed waived and/or sanctions imposed. The conference date may not be changed without the Court's consent. Any party's failure to appear may result in the issuance of costs and/or sanctions.