|Claimant short name:||LYNCH-MILLER|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has amended the caption sua sponte to reflect the only proper defendant before the Court. Defendant moved to dismiss the claim against New York State Department of Transportation and Clarence Mobilio, which was unopposed.|
|Judge:||DEBRA A. MARTIN|
|Claimant's attorney:||PARISI & BELLAVIA, LLP
BY: TIMOTHY C. BELLAVIA, ESQ.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 19, 2021|
|See also (multicaptioned case)|
The following papers were read on defendant's motion for summary judgment and/or dismissal of the claim:
1. Notice of Motion with Affirmation of Thomas G. Ramsay, AAG, and attached exhibits, filed April 29, 2021;
2. Attorney Affirmation of Timothy C. Bellavia, Esq. with attached exhibits, dated July 1, 2021;
3. Reply Affirmation of Thomas G. Ramsay, AAG, with attached exhibits, affirmed July 12, 2021;
4. Filed papers: claim, verified answer.
This claim involves a collision on January 12, 2018 at 4:12 p.m. between the car driven by claimant and a State Department of Transportation dump truck equipped as a snowplow and salter. The snowplow was described as a double wing (plow on each side) with a nose plow in the middle, and all plows were up at the time of the accident because the accumulation of snow was insignificant.
The site of the accident was on a stretch of the highway where vehicles are merging and moving across lanes to get into the correct lane in a relatively short distance, a mini-"Can of Worms" with which the Court is very familiar. Photos submitted with the motion and the police diagram were also helpful. Claimant came from work, traveled north on Monroe Ave., and Mr. Mobilio traveled southerly on Chestnut St.; at or near the intersection of Monroe Ave. and the Rte. 490 ramp, the street name changes to Chestnut St., so that claimant and Mr. Mobilio were on the same street, traveling in opposite directions before they turned onto the ramp. Claimant turned left onto the ramp to Rte. 490. Since she was heading west on Rte. 490, she stayed in the far-left lane of the ramp, which was the designated lane for Rte. 490 West. Mr. Mobilio turned right onto the ramp, and was then confronted with the choices of the left lane to Rte. 490 West, the middle lane to Rte. 490 East or the curb lane he was in, which was the lane to exit onto South Ave./Clinton Ave. Since it was Mr. Mobilio's intention to go west on Rte. 490, he was moving left into the far-left lane when the edge of his plow on the left side of his vehicle contacted the claimant's car between the passenger's door and the front wheel well. Photos of claimant's car show minor damage.
Claimant testified to traveling 35 MPH and Mr. Mobilio, under 35 MPH, in a 40 MPH zone on the ramp. Claimant thought the temperature was 40-50 degrees and lightly raining, but the weather report submitted by defendant documented a steady drop in the temperature from nearly 60 degrees at noon to 36 degrees at the time of the accident and 32 degrees by 5:15 p.m., when the steady rainfall turned to freezing rain. This was Mr. Mobilio's third time through his route that day to salt the road because the temperature was "on the edge of freezing." (Claimant's exhibit B, Mobilio depo, at 16.) He logged on the daily sheet the pounds of salt per lane mile used and the route followed that day and testified that he was actively salting at the time of the accident. Mr. Mobilio, an experienced DOT operator, was driving the Rochester downtown "beat" or route he had driven for 15 years, which he described as "from 390 at the canal all the way down around the loop, and all the ramps on both sides from 390 down through. So I was on my third round going around the loop to come back going westbound to go all the way out to 390." (id. at 18.) While he was salting, the round lights on top of the vehicle and the rear flashers were on; he testified that they "have to be on, from the time we leave the shop until the time we get back to the shop." He is also sure that his left blinker was on at the time of the accident. (id. at 19.)
The truck was equipped with mirror towers and side mirrors on both sides, which Mr. Mobilio checked as he moved to the left. Neither driver saw the other before the plow hit claimant's vehicle.
Defendant submitted an affidavit of the New York State Trooper who was called to the scene after the accident. He stated that the snowplow's lights and flashers were operational and activated when he got there and it was his belief they were on at the time of the accident, which claimant denies.
Defendant established through Mr. Mobilio's testimony that he was driving his scheduled beat, a loop that included the state highway Rte. 490, that this was his third time through salting this loop because the falling temperature was causing the rain to turn into freezing rain. He had the plow's lights, flashers and blinker on and was moving into the far-left lane so he could proceed on Rte. 490 West. He checked his mirrors but did not see claimant coming up on his left side, and the plow contacted the front right quarter panel of her vehicle.
This case falls squarely into Vehicle and Traffic Law § 1103 (b), which
"exempts from the provisions of title VII of the Vehicle and Traffic Law all 'persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway.' Such persons, teams, motor vehicles, and other equipment, however, are not relieved 'from the duty to proceed at all times during all phases of such work with due regard for the safety of all persons nor shall the foregoing provisions protect such persons or teams or such operators of motor vehicles or other equipment from the consequences of their reckless disregard for the safety of others' (id.). That subdivision includes snowplows (see Riley v County of Broome, 95 NY2d 455, 463 )."
(Hofmann v Town of Ashford, 60 AD3d 1498, 1499 [4th Dept 2009].) Defendant argued that it met this exemption and, therefore, is only liable if found in "reckless disregard", which Mr. Mobilio was not.
Claimant relied on Hofmann, arguing (1) the accident occurred on a City road leading to the highway ramp, not a state highway, so this was not part of his route; (2) he was not salting because neither claimant nor her son who came to the scene later saw salt on the road; and (3) claimant did not see lights activated on the truck at the time of the accident. These arguments are not persuasive.
Mr. Mobilio testified to his route and that the area of the accident was on it. It is a stretch to argue he was not on Rte. 490 and calling it a "ramp" doesn't change the fact that it is governed by state highway signage, it merges with Rte. 490, and is the only way to access Rte. 490 from Monroe Ave./Chestnut St., which are also a state highway, Rte. 31. A state trooper responded to the accident, which also confirms the state's jurisdiction. Claimant's attorney's affidavit attempting to refute Mr. Mobilio's testimony that he was actively working on his assigned beat at the time offered only speculation and was insufficient to raise an issue of fact. Likewise, Mr. Mobilio's testimony that he was salting at the time, as he had been as he traveled this loop numerous times that day to keep up with the freezing temperature was not sufficiently challenged by claimant and her son, who claimed to see no salt on the pavement; their observations about the temperature were proven to be incorrect based on the irrefutable evidence of the weather report and it is speculative that they could see salt particles on the pavement in this heavily-trafficked area. Whether or not the plow's various lights were activated is in dispute and the trooper's opinion on this is not helpful because he was not there at the time of the accident. Although Mr. Mobilio's testimony is more credible on this issue, credibility is not something the Court can decide on a summary judgment. However, the photos do not indicate that there was anything to impede claimant's view of the merging traffic, particularly that of a large, bright yellow snowplow, so this issue of fact does not mandate a trial.
The claimant's reliance on Hofmann is misplaced because that case dealt with a very different situation:
"[T]he record establishes that, at the time of the collision, Fuller was not driving on part of his plow route but instead was traveling from one part of his route to another by way of a county road that he was not responsible for plowing. Further, Fuller was driving with both blades of the snowplow raised, and was not sanding or salting the road."
(Hofmann v Town of Ashford, 60 AD3d 1498, 1499 [4th Dept 2009].) In the case now before the Court, Mr. Mobilio was actually engaged in salting his route when the accident occurred, thus rendering the "reckless disregard" standard applicable.
The Court of Appeals acknowledged the difficultly in articulating the "reckless disregard" standard in Vehicle and Traffic Law § 1104 (e) and that lower courts differed in their application of the standard to the facts of the cases, prompting the Court of Appeals to resolve the matter with the following definition:
"This standard demands more than a showing of a lack of 'due care under the circumstances'--the showing typically associated with ordinary negligence claims. 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 (Prosser and Keeton, Torts § 34, at 213 [5th ed.]; see, Restatement [Second] of Torts § 500)."
(Saarinen v Kerr, 84 NY2d 494, 501 .) Even armed with this definition, whether the actions of a defendant rose to the level of reckless disregard requires a review of the facts in every case.
In very similar circumstances, the Fourth Department reversed the lower court's denial of defendant's motion summary judgment, stating
"At most, plaintiff established that [the snowplower driver] did not see plaintiff's vehicle and that a portion of the snowplow crossed the center line of the road, which does not amount to recklessness. Moreover, plaintiff failed to submit competent evidence that Farr's operation of the snowplow without either a 'wing man' or certification to operate the snowplow without a wing man was reckless. Finally, while plaintiff and Farr provided different versions of the accident, those differences alone do not create a question of fact on the issue of reckless disregard here (see Catanzaro, 73 A.D.3d at 1449, 900 N.Y.S.2d 815)."
(Clark v Town of Lyonsdale, 166 AD3d 1574, 1575 [4th Dept 2018]; see also Primeau v
Town of Amherst, 17 AD3d 1003, 1003-04 [4th Dept 2005], affd, 5 NY3d 844 ;
Ferreri v Town of Penfield, 34 AD3d 1243, 1243-44 [4th Dept 2006].) These cases implicitly recognize the difficulties inherent in operating snowplows, under suboptimal weather conditions, in traffic, and with visibility issues. Further, the facts presented do not comport with the "reckless disregard" standard but are, at most, simply negligent behavior typical in motor vehicle accident cases.
Claimant's reliance on an expert to opine on "reckless disregard" is unavailing. The expert's report simply repeated the claimant's view of the facts and speculated that Mr. Mobilio moved abruptly across the several lanes and that his visibility was obscured by the plow. The Court agrees with defendant that following the expert's logic, this plow could never traverse this route without being reckless. Rather, the unrefuted evidence is that Mr. Mobilio was travelling well under the speed limit, used the available mirrors, and was very familiar with the required lane change. Furthermore, whether Mr. Mobilio acted with reckless disregard is not a question requiring an expert. (Kettles v City of Rochester, 21 AD3d 1424, 1426 [4th Dept 2005].)
Defendant's motion is supported by the facts that defendant is exempt from liability under Vehicle and Traffic Law § 1103 (b) and claimant's papers failed to raise a question of fact requiring a trial. The Court does not need to address the remaining aspects of defendant's motion and declines to do so.
Therefore, it is
ORDERED that defendant's motion is granted in that defendant is entitled to the application of the reckless disregard standard in Vehicle and Traffic Law § 1103 (b) and, under that standard, is exempt from liability; and it is further
ORDERED that this claim is dismissed with prejudice.
August 19, 2021
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims