PATRICK C. CHASE, PLAINTIFF-APPELLANT,V JASON ALAN MARSH, TOWN OF MACHIAS AND TOWN OFMACHIAS HIGHWAY DEPARTMENT, DEFENDANTS-RESPONDENTS.LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),FOR PLAINTIFF-APPELLANT.BOUVIER LAW LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FORDEFENDANTS-RESPONDENTS.Appeal from an order of the Supreme Court, Cattaraugus County(Jeremiah J. Moriarty, III, J.), entered July 20, 2017. The order,insofar as appealed from, dismissed the complaint against defendantsJason Alan Marsh and Town of Machias upon defendants’ motion forsummary judgment.It is hereby ORDERED that the order insofar as appealed from isunanimously reversed on the law without costs, the motion is denied inpart and the complaint is reinstated against defendants Jason AlanMarsh and Town of Machias.Memorandum: In February 2015, plaintiff was driving to churchwith his daughter when he crested a hill and observed a snowplow ownedby defendant Town of Machias and driven by its employee, defendantJason Alan Marsh (collectively, defendants), traveling in reverse upthe hill. Plaintiff was unable to brake in time and struck the rearend of the plow. The plow continued in reverse for three to fourseconds following impact while pushing plaintiff’s vehicle, beforeMarsh realized that the collision had occurred. Plaintiff thereaftercommenced this action alleging that Marsh operated the snowplow in anegligent and reckless manner and seeking damages for his injuries.Defendants and defendant Town of Machias Highway Department (HighwayDepartment) moved for summary judgment dismissing the complaint, andSupreme Court granted the motion. Plaintiff did not oppose the motionwith respect to the Highway Department, and contends on appeal thatthe court erred in granting those parts of the motion with respect todefendants, who contended in support thereof that Marsh had not actedwith the requisite reckless disregard needed for a finding ofliability pursuant to Vehicle and Traffic Law § 1103 (b). We agreewith plaintiff, and we therefore reverse the order insofar as appealedfrom.Defendants failed to meet their initial burden of establishingthat Marsh did not operate the snowplow with reckless disregard forthe safety of others, and defendants thus were not entitled to summaryjudgment dismissing the complaint against them. Vehicle and TrafficLaw § 1103 (b) “exempts from the rules of the road all vehiclesactually engaged in work on a highway” (Riley v County of Broome, 95NY2d 455, 465 [2000];see Hofmann v Town of Ashford, 60 AD3d 1498,1499 [4th Dept 2009]). However, the statute does not protect snowplowdrivers “from the consequences of their reckless disregard for thesafety of others” (§ 1103 [b]). The operator of a snowplow acts withsuch “reckless disregard” when he or she ” ‘acts in consciousdisregard of a known or obvious risk that is so great as to make ithighly probable that harm will follow’ ” (Haist v Town of Newstead, 27AD3d 1133, 1134 [4th Dept 2006];see Bliss v State of New York, 95NY2d 911, 913 [2000];Rockland Coaches, Inc. v Town of Clarkstown, 49AD3d 705, 706 [2d Dept 2008]). The reckless disregard standard“requires a showing of more than a momentary judgment lapse” (Saarinenv Kerr, 84 NY2d 494, 502 [1994];see Riley, 95 NY2d at 466).Here, defendants’ submissions in support of the motion establishthat Marsh had been a driver of the snowplow route for 15 years andwas aware that an intersection where he could safely turn around wasless than a quarter of a mile away. Despite that knowledge, Marshdrove the snowplow in reverse, in front of a hill that obscured hisview of approaching traffic on a narrow, two-lane country road with aspeed limit of 55 miles per hour, without first sounding his horn inwarning. Marsh’s deposition testimony that he did not realize that hehad collided with plaintiff’s vehicle until several seconds after thecollision raises a question of fact whether he was utilizing his rearview mirrors while traveling in reverse. We therefore conclude thatdefendants failed to establish that Marsh was not reckless as a matterof law or that the decisions made by him constituted a momentary lapsein judgment (see Freitag v Village of Potsdam, 155 AD3d 1227, 1231 [3dDept 2017], citingBliss, 95 NY2d at 913;see generally Szczerbiak vPilat, 90 NY2d 553, 556-557 [1997];Saarinen, 84 NY2d at 502).In view of our determination that defendants failed to meet theirinitial burden, we do not consider the sufficiency of plaintiff’sopposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]).Entered: June 8, 2018 Mark W. BennettClerk of the Court
