Opinion
Index No. 500842/2019 Sequence Nos. 1-2
07-24-2020
ANA ORELLANA, Plaintiff, v. THE TOWN OF CARMEL, THE TOWN OF CARMEL HIGHWAY DEPARTMENT and MICHAEL J. SIMEONE, Defendants.
Robert J. Pariser, Esq., Louis Brett Goldman, Esq., Lydecker Diaz, Attorneys for Defendants Enoch C. Brady, Esq., Enoch Brady & Associates, Attorneys for Plaintiff
Unpublished Opinion
Motion Date: 6/24/2020
Robert J. Pariser, Esq., Louis Brett Goldman, Esq., Lydecker Diaz, Attorneys for Defendants
Enoch C. Brady, Esq., Enoch Brady & Associates, Attorneys for Plaintiff
DECISION & ORDER
VICTOR G. GROSSMAN, J.S.C
The following papers, numbered 1 to 38, were considered in connection with Defendants' Notice of Motion, dated June 6, 2020, for an Order, granting summary judgment and dismissing the complaint, and Plaintiffs Notice of Motion, dated June 8, 2020, seeking, inter alia, partial summary judgment on the issue of liability and setting the matter down for trial on the issue of damages.
PAPERS NUMBERED
Defendants' Notice of Motion/Goldman Affirmation in Support/Exhs. A-M/Defendants' Memorandum of Law...........................1-16
Plaintiffs Notice of Motion/Brady Affirmation in Support/ Plaintiff s Affidavit/Exhs. 1-11...........................17-30
Brady Affirmation in Opposition/Plaintiffs Affidavit/Exh. 1/ Plaintiff s Memorandum of Lawv31-34
Goldman Affirmation in Opposition to Plaintiffs Motion...........................35
Brady Reply Affirmation/Reply Memorandum...........................36-37
Goldman Reply Affirmation...........................38
This is an action for personal injuries allegedly sustained by Plaintiff Ana Orellano as a result of a motor vehicle accident that occurred on December 13, 2018 at 10:05 a.m. on Lakeview Drive at the intersection of Highridge Road in Carmel, New York. At the time of the accident, Plaintiff was proceeding westbound on Highridge Road when her vehicle was struck by Defendant Town of Carmel's 2015 Ford motor vehicle which was being operated by Defendant Michael Simone, Superintendent of Highways for Defendant Town of Carmel Highway Department, in the course of his employment (collectively "Defendants"). At the time, Simone had been driving northbound on Lakeview Drive, had the stop sign, and then proceeded northbound on Lakeview Drive, striking Plaintiffs car (Goldman Affirmation at ¶¶2-3).
On May 29, 2019, Plaintiff commenced this action, alleging that Defendants' negligence, recklessness and carelessness caused her serious injuries (Complaint at ¶¶21, 26). On July 9, 2019, Defendants interposed their collective Answer, generally denying the allegations and raising twenty (20) affirmative defenses, including they are exempt from liability pursuant to Vehicle and Traffic Law § 1103(b).
In the Verified Bill of Particulars, Plaintiff alleges that Defendants negligently operated their vehicle, and were in violation of, inter alia, Vehicle and Traffic Law §§ 1110A, 1140, 1141, 1142, 1146, 1163, 1172, 1180(a)(e), and 1212 (BOP at ¶4).
Discovery has been completed, and Plaintiff filed a Note of Issue and Certificate of Readiness for Trial on February 24, 2020.
Defendants move for summary judgment on the ground that their conduct did not breach the standard of care required of them set forth by Vehicle and Traffic Law § 1103(b). In response, Plaintiff asserts that Defendants have failed to establish that "Simone was not engaged in active highway maintenance the morning of the incident because he was merely driving around in what was essentially a passenger SUV looking at road conditions (he was not plowing, salting, mowing, etc.)" (Brady Affirmation in Opposition at ¶25). Plaintiff also argues that even if Simone was involved in active highway maintenance, Defendants still failed to make a prima facie showing that they are entitled to the protections of VTL § 1103(b) "in that at the time of the accident Mr. SIMONE was just driving back to his base having already made the determination that he must send his crews out with salt to check their routes and had called the base to set this in motion five minutes before the accident occurred" (Brady Affirmation in Opposition at ¶25). As such, according to Plaintiff, Simone is subject to Article VII Rules of the Road including Vehicle and Traffic Law §§ 1172 and 1142. Moreover, Plaintiff asserts that it is undisputed that Simone failed to yield the right of way to her in the intersection, and as such, she is entitled to partial summary judgment on the issue of liability.
It is axiomatic that summary judgment is a drastic remedy and should not be granted where triable issues of facts are raised and cannot be resolved on conflicting affidavits (see Millerton Agway Coop, v Briarcliff Farms, 17 N.Y.2d 57, 61 [1966]; Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]). Initially, "the proponent... 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 issue of fact." However, once a movant makes a sufficient showing, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Where the moving papers are insufficient, the court need not consider the sufficiency of the opposing papers (id.; see also Fabbricatore v Lindenhurst Union Free School Dist., 259 A.D.2d 659 [2d Dept 1999]).
"The Vehicle and Traffic Law sets forth a uniform set of traffic regulations known as the 'rules of the road'" (DeleonvNew York City Sanitation DepL, 25 N.Y.3d 1102, 1104 [2015], citing Riley v County of Broome, 95 N.Y.2d 455, 462 [2000]). In enacting Vehicle and Traffic Law § 1103(b), the Legislature intended "to create a broad exemption from the rules of the road for vehicles engaged in construction, maintenance, or repair of highways. Rather than the ordinary negligence standard, drivers engaged in such activities arc held to a lesser standard of care: 'reckless disregard for the safety of others.' There are two initial questions, therefore. Was the driver engaged in a covered activity and, second, was that activity taking place on a highway? If so, the lesser standard applies" (Larry Cunningham, 2018 Practice Commentaries, McKinney's Cons Laws of NY, Vehicle and Traffic Law § 1103).
The sole issue before the Court is whether Simone was "actually engaged in work on a highway" at the time of the collision (see Riley v County of Broome, 95 N.Y.2d at 463). The courts take an expansive view of what it means to be engaging in road maintenance (Larry Cunningham, 2018 Practice Commentaries, McKinney's Cons Laws of NY, Vehicle and Traffic Law § 1103, citing Harris v Hanssen, 161 A.D.3d 1531 [4th Dept 2018] [defendant was plowing streets as part of his assignment on behalf of town; fact that blade was up at time of collision was immaterial]). "[T]he history of section 1104(b) explicates the legislative intention to create a broad exemption from the rules of the road for all vehicles engaged in highway construction, maintenance or repair, regardless of their classification" (Riley v County of Broome, 95 N.Y.2d at 464). "In 1954, the Committee that proposed the original version of the statute stated that the law was intended to exempt from the rules of the road all teams and vehicles that 'build highways, repair or maintain them, paint the pavement markings, remove the snow, sand the pavement and do similar work' (see, 1954 N.Y. Legis. Doc. No. 36, at 35). Thus, the exemption turns on the nature of the work being performed (construction, repair, maintenance or similar work) - not on the nature of the vehicle performing the work" (Riley v County of Broome, 95 N.Y.2d at 464). Moreover, "the legislative history shows that the reference to 'hazard vehicles' in section 1103(b) is wholly unrelated to the provision excusing vehicles engaged in road work from the rules of the road" (Riley v County of Broome, 95 N.Y.2d at 464). Finally, there is no requirement that the vehicle be located in a designated "work area" in order to be afforded protection (Riley v County of Broome, 95 N.Y.2d at 468).
The Court finds Simone was "actually engaged in work on a highway" at the time of the collision. While he was not operating a snowplow, he was operating his work vehicle to assess the conditions of the road for snow treatment and possible removal (Simone EBT at 15-16, 25, 92). The Court finds that these actions constitute maintenance of the Town roads. It would be counterintuitive for the Court to conclude differently. The sole purpose of his assessment of the road conditions was to determine whether his employees needed to execute their duties due to the falling snow and impending snow storm (Simone EBT at 20-22, 24-35). The fact that he was not operating a snow plow is of no moment to the Court. He was performing his job in his official capacity at the time of the accident. In fact, although he was heading back to his office, he noted that there was a hazardous condition developing at the intersection of the accident (Simone EBT at 68-69, 70-72), which illustrates that he was still accessing the roads during his return drive (cf Davis v Incorporated Vil. of Babylon, N.Y., 13 A.D.3d 331 [2d Dept 2004] [street sweeper merely traveling from one site to another; VTL § 1103[b] inapplicable], and Zanghi v Doerfler, 158 A.D.3d 1275 [4th Dept 2018] [VTL § 1103[b] exemption inapplicable where an empty town dump truck was traveling between work sites, and was not plowing, salting, sanding or hauling snow]). As such, Defendants have established their entitlement to this exemption as a matter of law (see Farese v Town of Carmel, 296 A.D.2d 436, 437 [2d Dept 2002]).
Because the protections of VTL § 1103(b) apply, liability will only attach if Simone behaved recklessly (Deleon v New York City Sanitation Dept., 25 N.Y.3d at 1105; see Howell v State, 169 A.D.3d 1208, 1209 [3d Dept 2019]). "This standard demands more than a showing of a lack of 'due care under the circumstances' - the showing typically associated with ordinary negligence claims" (Saarinen v Kerr, 84 N.Y.2d 494, 501 [1994]). "It 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" (Saarinen v Kerr, 84 N.Y.2d at 501; see Bliss v State of New York, 95 N.Y.2d 911, 913 [2000]). "[A] reckless disregard for the safety of others 'requires more than a momentary lapse in judgment'" (James v Town of Babylon, 40 Misc.3d 8, 10 [App Term, 2d Dept, 9th & 10lh Jud Dists 2013], quoting Rockland Coaches, Inc. v Town of Clarkstown, 49 A.D.3d 705, 707 [2d Dept 2008]). "To find that there has been a reckless disregard for the safety of others, all the definitional prongs of that standard must be determined against the driver" (James v Town of Babylon, 40 Misc.3d at 10).
Here, the undisputed evidence establishes that Simone stopped at a stop sign, failed to look to the right after looking to his left, and proceeded into the intersection without yielding to Plaintiff who did not have a traffic control device. While this alone constitutes prima facie negligence (see VTL §§ 1142[a], 1172[a]), Plaintiff has failed to proffer additional evidence to support a finding that she established a prima facie case that Simone's actions were reckless (see Skolnick v Town of Hempstead, 278 A.D.2d 481, 482 [2d Dept 2000]). In fact, she admitted she did not even see Simone's vehicle until she felt the impact (50h transcript at 17, 20-21). Simone's actions, without more, while clearly negligent, are insufficient to constitute recklessness (see State Farm Mut. Auto. Ins. Co. v City of Auburn, 5 Misc.3d 1016(A) [City Ct 2004] ["a misjudgment in clearance of a vehicle in an intersection was not a decision on [defendant's] part to ignore a grave risk likely to result in harm to others but rather a failure to observe and judge correctly the speed of a vehicle, and then pulling out into the intersection"]; see McDonald v State, 176 Misc.2d 130 [Ct Cl 1998] [where snowplow collided with vehicle when it attempted to cross lanes of highway and reach U-turn area in median did not act with reckless disregard for safety of others, as required by VTL § 1103; while operator was negligent, nothing indicated she ignored grave risk likely to result in harm to others, as her observations did not disclose any other cars in the vicinity and all warning lights on snowplow were operating]). At most, Simone's failure to look right before proceeding into the intersection was no more than a momentary lapse in judgment (see Rockland Coaches, Inc. v Town of Clarkstown, 49 A.D.3d at 707 [where snow plow operator looked in this side view mirrors as he approached intersection, but he failed to look in them immediately before turning, did not constitute reckless disregard]).
In light of the above, the Court declines to address any remaining argument and finds that Plaintiffs motion is denied as moot.
Accordingly, it is hereby
ORDERED that Plaintiffs motion is denied; and it is further
ORDERED that Defendants' motion is granted and the Complaint is dismissed.
The foregoing constitutes the Decision and Order of the Court.