In an action to recover damages for personal injuries, (1) the plaintiff moves for summary judgment on the issue of liability pursuant to CPLR 3212; and (2) the defendants VILLAGE OF SLEEPY HOLLOW and DOUGLAS DICARIANO move for summary judgment dismissing the complaint, pursuant to CPLR 3212: Papers Considered Motion Seq. 1 NYSCEF DOC NO. 17-28; 38-42; 45-46; 51 1. Notice of Motion/Affirmation of Ellen D. Lazarus, Esq./Statement of material facts/Exhibits A-H/Affidavit of service 2. Affirmation of Kenneth E. Pitcoff, Esq. in opposition/Exhibits B-D/ Response to statement of material facts 3. Affirmation of Ellen D. Lazarus, Esq. in reply/Certification pursuant to 202.8-b(c) of Ellen D. Lazarus, Esq./Certification of Ellen D. Lazarus, Esq. Motion Seq. 2 NYSCEF DOC NO. 29-37; 47-50; 52-53 1. Notice of Motion/Affirmation of Kenneth E. Pitcoff, Esq./Exhibits A-E/ Statement of material facts 2. Affirmation of Ellen D. Lazarus, Esq. in opposition/Exhibit A/ Statement of material facts/Certification pursuant to 202.8-b(c) of Ellen D. Lazarus, Esq./Certification of Ellen D. Lazarus, Esq. 3. Reply Affirmation of Kenneth E. Pitcoff, Esq. DECISION & ORDER Factual and Procedural Background Plaintiff commenced this action for personal injuries sustained as a result of a rear end motor vehicle accident that occurred on October 5, 2020 at or near the intersection of Beckman Avenue and North Washington Street in the Village of Sleepy Hollow, New York. Defendants joined issue with the service and filing of their answer. At the time of the accident, defendant DOUGLAS DICARIANO (“DiCariano”) was operating a Caterpillar backhoe owned by defendant VILLAGE OF SLEEPY HOLLOW (“Sleepy Hollow”). On October 5, 2020, DiCariano punched in at work at 5:30 a.m. and received his assignment for the day at approximately 6:00 a.m., to operate the subject Caterpillar backhoe to open the roadway at a job site at Depeyster Street and Valley Street. Thereafter, DiCariano traveled to the job site and arrived at approximately 8:00 a.m. At one point, DiCariano had to leave the job site to obtain additional material for the subject job. DiCariano traveled to the Sleepy Hollow storage yard located on Continental Street where he loaded the front bucket of the backhoe with gravel. The subject accident occurred as DiCariano was traveling from the Sleepy Hollow storage yard, with approximately two yards of gravel in the bucket, back to the job site. DiCariano did not make any stops upon leaving the storage yard and was traveling directly back to the job site, a three to five minute drive, when the accident occurred. Traffic was steadily flowing while DiCariano was traveling along Beekman Avenue, a main road. The subject intersection of Beekman Avenue and North Washington Street is controlled by a traffic light. Plaintiff’s vehicle was traveling directly in front of the Caterpillar backhoe approximately five to ten miles per hour on Beekman Avenue as it approached the subject intersection. The disputed issues of fact include whether the plaintiff’s vehicle was moving when it was hit by the defendant’s vehicle, whether the traffic light turned from green to yellow just prior to impact, and the location of plaintiff’s vehicle upon impact. Plaintiff moves for summary judgment on the issue of liability. Plaintiff argues that he testified at his 50-h hearing and examination before trial that he was fully stopped behind another vehicle, which wanted to make a left turn, for about 20 seconds when his vehicle was impacted by the defendants’ vehicle. Plaintiff argues that DiCariano concedes that he observed plaintiff’s vehicle in front of him as he approached the yellow traffic light, that he struck the plaintiff’s vehicle in the rear, and that nothing obstructed his view as the accident occurred. Plaintiff argues that DiCariano admits in his statement taken following the accident that the plaintiff was stopped at a yellow light and that he did not have time to stop because he did not anticipate a car stopping at a yellow light. Plaintiff argues, as a result, that defendants are incapable of rebutting the presumption of negligence against them arising from the rear-end motor vehicle accident. In support of defendants’ motion for summary judgment and in opposition to plaintiff’s motion, defendants argue that because DiCariano was operating a hazard vehicle and actually engaged in work on a highway at the time of the instant accident, the standard of proof is reckless disregard pursuant to VTL 1103(b), not negligence. Defendants argue that DiCariano’s testimony establishes that he was engaged in work on a highway at the time of his accident, as he was operating the backhoe while delivering additional gravel to the job site during his shift. Defendants also claim that there is no evidence that DiCariano acted in reckless disregard for the safety of others, as he testified that the accident occurred when both vehicles were approaching the subject intersection, DiCariano observed the traffic light change from green to yellow as plaintiff’s vehicle entered the intersection after which the impact occurred, and there is no evidence DiCariano was speeding. As such, defendants argue that DiCariano’s conduct was at most negligent as he believed plaintiff was going to proceed through the yellow light given that it had already entered the intersection when the impact occurred. In further support of her motion and in opposition to defendants’ motion, plaintiff argues that the facts of this case do not grant the defendants the reckless disregard standard as DiCariano was not on the highway where the work was being performed and was not engaged in work on the highway at the time of the accident at issue. In the alternative, plaintiff argues that if the court finds that DiCariano was operating a hazard vehicle or was actually engaged in work on a highway, the standard of care is that of operating a vehicle with no exigent circumstances. Discussion The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v. N.Y. Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “Once this showing has been made, however, 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 NY2d 320, 324 [1986]; see Zuckerman v. City of New York, 49 NY2d at 562). Vehicle and Traffic Law §1103(b) exempts from the rules of the road all vehicles “while actually engaged in work on a highway” and imposes on such vehicles a recklessness standard of care (NY SLC Veh & Tr §1103 [b]; Veralli v. O’Connor, 190 A.D.3d 783, 784 [2d Dept 2021] [citation omitted]; Riley v. County of Broome, 95 NY2d 455, 460 [2000]). Reckless disregard requires more than a momentary lapse in judgment (Kaffash v. Village of Great Neck Estates, 190 A.D.3d 709, 710 [2d Dept 2021]). This requires a showing that the operator acted in conscious disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow (id.). The first issue before this Court is whether DiCariano was operating the backhoe while actively engaged in work on a highway pursuant to Vehicle and Traffic Law §1103(b). Prior to the accident, DiCariano was operating the backhoe to open the roadway at a job site when he had to leave the job site to obtain additional material, gravel, for the subject job. DiCariano left the job site, traveled directly to the storage yard where he loaded the front bucket of the backhoe with gravel and was traveling directly back to the job site with the gravel when the accident occurred. As a result, DiCariano was actively engaged in work on a highway at the time the instant accident occurred. The statute does not require that a vehicle be located in a designated “work area” in order to receive the protection (Riley v. County of Broome, 95 N.Y.2d at 468). The circumstances of the instant action are akin to Skolnick v. Town of Hempstead wherein the Second Department held that the town truck that was driving the wrong way on a one-way street after having just cleaned three storm drains at an intersection was “actually engaged in work on a highway” and therefore plaintiff had to show that he acted in “reckless disregard for the safety of others”. (278 AD2d 481 [2d dept 2000]; see also Matsch v. Chemung County Dept. of Pub Works, 128 AD3d 1259 [3d Dept 2015] (wherein the Third Department found that the driver of a street sweeper was “actually engaged” in protected work and not traveling from one work site to another where she was assigned to clear the gravel on the eastbound highway which required her to follow a circuitous route to complete the assigned work including driving on the westbound side of the highway to return to clear the gravel when the accident occurred); Levine v. GBE Contr. Corp., 2 AD3d 596 (truck making a U-turn on the New York State Thruway when the injured plaintiff’s vehicle collided with it was actually engaged in work on a highway). This case is distinguished from the cases cited by plaintiff, including Guzman v. Bowen, which involved a motor vehicle accident with a garbage truck that was involved in ordinary municipal refuse collection at the time of the accident, which the Second Department held was not “construction, repair, maintenance or similar work” and therefore work on a highway pursuant to Vehicle & Traffic Law §1103(b) (38 AD3d 837, 837 [2d Dept 2007]). This case is also distinguished from Hofmann v. Town of Ashford, wherein the Fourth Department held that the defendant operator of a snowplow was not driving on part of his plow route, but was instead traveling from one part of his route to another by way of a county road that he was not responsible for plowing, and that both blades of the snowplow were raised and he was not sanding the road (60 AD3d 1498, 1499 [4th Dept 2009]). Neither plaintiff nor defendants established a prima facie entitlement to judgment as a matter of law pursuant to the recklessness standard of Vehicle & Traffic Law §1103(b). In support of their motions, plaintiff and defendants submitted, inter alia, the deposition testimony of the plaintiff and the defendant driver, which fail to eliminate triable issues of fact as to how the incident occurred, and whether the defendant driver operated the backhoe in reckless disregard for the safety of others (Joya v. Baratta, 164 A.D.3d 772, 773 [2d Dept 2018]). Accordingly, it is hereby ORDERED that the plaintiff’s motion for summary judgment on the issue of liability pursuant to CPLR 3212 is DENIED; and it is further ORDERED that the defendants VILLAGE OF SLEEPY HOLLOW and DOUGLAS DICARIANO motion for summary judgment dismissing the complaint, pursuant to CPLR 3212, is DENIED. The parties are directed to appear for a settlement conference on May 16, 2022 at 3:00 p.m., subject to confirmation by the virtual conference link emailed by this Court. Dated: April 25, 2022
