Opinion
# 2012-018-326 Claim No. 117979 Motion No. M-81497
09-14-2012
VERIZON NEW YORK INC. v. STATE OF NEW YORK
Synopsis
Despite general knowledge of the existence of pedestals along highways, Defendant's employee's actions, as a matter of law, did not disregard a known or obvious risk of highly probable harm. Defendant's motion must be granted and the claim DISMISSED. Case information
UID: 2012-018-326 Claimant(s): VERIZON NEW YORK INC. Claimant short name: VERIZON Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 117979 Motion number(s): M-81497 Cross-motion number(s): Judge: DIANE L. FITZPATRICK SOLOMON AND SOLOMON, P.C. Claimant's attorney: By: Harold L. Solomon, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Edward F. McArdle, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: September 14, 2012 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant brings a timely motion for summary judgment.Claimant opposes the motion.
Claimant originally filed a cross-motion for summary judgment but notified Chambers on July 9, 2012, that it was withdrawing its cross-motion and requesting its paperwork be treated as opposition to Defendant's motion.
The claim seeks $4,388.99 for property damage Claimant sustained when Defendant's employee negligently ran over a Verizon pedestal, housing buried cables while mowing in the vicinity of State Route 31 and Bull Streetin the Town of Cicero. The answer denied the factual allegations and asserted as a second affirmative defense that Defendant's actions or inaction ". . . are privileged, immune or otherwise excused from the imposition of liability."
Referred to as both Bull Street and Bull Road in the motion documents.
Claimant made a Demand for a Verified Bill of Particulars, seeking Defendant to particularize how the Defendant was excused from liability. Defendant's response invoked qualified immunity and Vehicle and Traffic Law § 1103 (b) which applies a reckless disregard standard in lieu of ordinary care in the use of mowing equipment along a State highway.
The facts are not in dispute. On September 2, 2009, Kean A. Zeches, a long-time employee of the New York State Department of Transportation (hereinafter DOT) was clearing tall grass for sight distance at the corner of State Route 31 and Bull Street. The grass and weeds were over six feet high. Mr. Zeches testified in his deposition that he was off of the paved surface of the roadway, using a flail mower connected to a tractor. As he proceeded, one of the flails struck the Verizon pedestal hidden in the grass. This pedestal may not have had a warning sign. Some of the pedestals have a taller orange warning sign attached. Mr. Zeches acknowledged seeing similar pedestals to the subject one during his tenure with the DOT but did not see this one until he struck and damaged it.
Defendant, by this motion, argues that it is entitled to judgment as a matter of law dismissing the claim on the grounds that pursuant to Vehicle and Traffic Law § 1103 (b), Mr. Zeches' operation of the mower, while engaged in mowing the grass is exempt from the rules of the road, and his conduct cannot form the basis for liability unless he acted with reckless disregard for the safety of others. Defendant contends Mr. Zeches' conduct, as a matter of law, was not reckless and, therefore, the claim must be dismissed.
Claimant, in opposition, makes two primary arguments. Claimant argues that Mr. Zeches operated the mower with reckless disregard for Claimant's property and points to Mr. Zeches' awareness of pedestals being located along State highways. Claimant relies upon Verizon v State of New York which was decided in favor of Claimant for a similar accident which occurred on August 2, 2004. Claimant argues this put the State on notice of pedestals situated in the grass along the highways. Further, Claimant alleges that Vehicle and Traffic Law § 1103 (b) is inapplicable to this case as the proximate cause of Claimant's damages was not the operation of the mower, but the height of the grass. Claimant asserts it is the State's ordinary negligence in allowing the grass and weeds to grow taller than six feet in violation of its own directives and guidelines that proximately caused Claimant's damages.
Verizon v State of New York, UID No. 2010-009-105 [Ct Cl, Midey, J., Nov. 4, 2010]. It appears that Vehicle and Traffic Law § 1103 (b) was never raised in defense of this claim.
Vehicle and Traffic Law § 1103 (b) applies to hazard vehicles, those that are engaged in work on a highway (Riley v County of Broome, 95 NY2d 455 [2000]). Vehicles engaged in mowing are considered hazard vehicles (Vehicle and Traffic Law § 117-a; Farese v Town of Carmel, 296 AD2d 436 [2d Dept 2002]). Even if the vehicle in question is merely adjacent to the highway, the reckless disregard standard applies (New York State Elec. & Gas Corp. v State of New York, 14 AD3d 675 [2d Dept 2005]; Joseph v State of New York, UID No. 2007-030-561 [Ct Cl, Scuccimarra, J., Sept. 10, 2007]).
The effort by Claimant to frame the issue as sounding in premises liability and the State's failure to comply with its own departmental regulations is appealing, but the Court finds it unavailing here. The claim alleged the operator's negligence, negligent supervision, and hiring (see Darrisaw v Strong Mem. Hosp., 16 NY3d 729, 731 [2011]); there was no mention of the height of the grass and weeds. Based upon appellate authority, this case falls within the ambit of Vehicle and Traffic Law § 1103 (b) and requires some proof that Mr. Zeches demonstrated a reckless disregard for the safety of others or their property in order to defeat this motion (New York State Elec. & Gas Corp. 14 AD3d at 676).
The question then becomes whether the Claimant has raised a triable issue of fact on the issue of whether Mr. Zeches' conduct was reckless. Conduct which evinces a reckless disregard involves actions 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 ". . . with conscious indifference to the outcome." (Saarinen v Kerr, 84 NY2d 494, 501 [1994] quoting Prosser and Keaton, Torts § 34 at 213 [5th ed]).
Despite Mr. Zeches' general knowledge of the existence of pedestals along highways, his actions, as a matter of law did not disregard a known or obvious risk of highly probable harm. Under these circumstances, Defendant's motion must be granted and the claim DISMISSED.
September 14, 2012
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion.
2) Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General, in support with exhibits attached thereto.
3) Affirmation of Harold L. Solomon, Esquire, in opposition, with exhibits attached thereto.