The following papers numbered 1 to 22 were read on the motion by plaintiff John Bellantoni (Bellantoni) seeking partial summary judgment on the issue of liability on the first cause of action against the defendants in accordance with CPLR 3212, dismissing the defendants’ first, second, fourth, fifth, seventh, eighth, ninth, tenth, eleventh, and twelfth affirmative defenses in accordance with CPLR 3211(b), and for such other and further relief as this Court deems just and proper. PAPERS NUMBERED Notice of Motion / Affirmation (Greenspan) / Statement Of Material Facts / Exhibits 1 — 11/ Memorandum of Law 1-15 Affirmation in Opposition (Zefi) / Exhibits A-B 16-18 Affirmation in Reply (Greenspan) / Exhibits 12-14 19-22 DECISION AND ORDER This action arises out of a motor vehicle accident between a passenger car and a snowplow truck that occurred on January 7, 2022, in the town of Greenburgh, New York. On that date, plaintiff’s vehicle and defendants’ municipal snowplow vehicle were proceeding eastbound on Route 119 approaching the intersection of Old White Plains Road. Plaintiff Bellantoni has alleged in his affidavit the following: while on Route 119 prior to the collision, he was traveling on the left lane and observed Avery’s vehicle a few car lengths ahead of him in the middle lane; the traffic light was green at the intersection of Old White Plains Road; in addition, the plow of Avery’s vehicle was raised, no salt was dropping from the rear, and no flashing lights were activated; Avery’s vehicle turned right, crossing the lane line between the middle and right lanes, then without warning, it suddenly turned left, crossing the middle lane and the left lane into his path of travel; Avery did not sound his horn; Bellantoni attempted to brake but was unable to stop due to the snow-covered roadway and struck the driver’s side of Avery’s vehicle. Counter to Bellantoni’s affidavit in multiple points, Avery has alleged in his affidavit the following: he had just plowed one side of Route 9 and several side streets prior to entering Route 119 to make a legal U-turn at the intersection of Route 119 and Old White Plains Road so he could finish plowing Route 9; he was traveling in the left turning lane on Route 119 and the snowplow and salt spreader were engaged since he picked up the vehicle; he slowed his vehicle, activated the left turn signal, checked his sideview mirror, and saw no vehicle in the vicinity before moving his vehicle slightly to the right to make enough room to complete the U-turn; he was traveling less than 10 miles per hour while making the turn before he felt an impact to the middle driver’s side of the vehicle. Plaintiff Bellantoni commenced the action by filing a Summons and Verified Complaint on January 6, 2023. Defendants answered and asserted twelve affirmative defenses. By Notice of Motion filed on March 28, 2023, plaintiff moves for an order pursuant to CPLR 3212 granting summary judgment on the issue of liability and an order pursuant to CPLR 3211(b) dismissing the defendants’ First, Second, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, Eleventh, and Twelfth affirmative defenses. The court’s function on this motion for summary judgment is issue finding rather than issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). “[T]he proponent of a summary judgment motion 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 issues of fact…. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers…. 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] [citations omitted]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1978]). The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party (Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 [2014]). As stated in Scott v. Long Island Power Auth. (294 AD2d 348, 348 [2d Dept. 2002]): “It is well established that on a motion for summary judgment the court is not to engage in the weighing of evidence. Rather, the court’s function is to determine whether ‘by no rational process could the trier of facts find for the nonmoving party’ (Jastrzebski v. North Shore School Dist., 223 AD2d 677, 678 [internal quotation marks omitted]). It is equally well established that the motion should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Dolitsky v. Bay Isle Oil Co., 111 AD2d 366).” Plaintiff seeks summary judgment dismissing the following Affirmative Defenses: First (Plaintiff’s culpable conduct); Second (culpable conduct of third party); Fourth (plaintiff not wearing a seat belt); Fifth (emergency situation); Seventh (failure to mitigate damages); Eighth (limitation of liability under Article 16); Ninth (emergency situation); Tenth (noncompliance with GML §50); Twelfth (inherently dangerous activity). The record contains no evidence to establish the potential validity of these defenses, which merely state conclusions of law or fact (see Banco Popular N. Am. v. Victory Taxi Mgt., 1 NY3d 381, 383 [2004]). Defenses consisting of bare legal conclusions lacking in evidentiary facts or documentary proof are insufficient to defeat summary judgment (HSBC Mtge. Corp. v. Enobakhare, 2013 NY Slip Op 32477[U][Sup Ct Richmond County 2013][Maltese, J.], citing Aames Funding Corp. v. Houston, 44 AD3d 692, 693 [2d Dept 2007]). “Neither plaintiff nor the court ought to be required to sift through a boilerplate list of defenses…to divine which defenses might apply to the case” (Scholastic Inc. v. Pace Plumbing Corp., 129 AD3d 75, 79 [1st Dept 2015]). These defenses thus are dismissed. This motion for partial summary judgment on the issue of liability thus turns on the Eleventh affirmative defense, in which the defendants assert that they cannot be found liable based on negligence as they were “actually engaged in work on a highway” pursuant to Section 1103(b) of the New York State Vehicle and Traffic Law. Section 1103(b) provides for an exemption from the rules of the road for hazard vehicles: when a vehicle is actually engaged in work on a highway, the operator of that vehicle is not liable for an accident due to their negligence (Riley v. County of Broome, 95 NY2d 455, 461 [2000]). The plaintiff then has the burden to prove that the operator acted with reckless disregard for the safety of others to recover against the defendant in the action (id. at 466). Moving to dismiss this affirmative defense, plaintiff contends that Avery, a municipal employee operating a municipal vehicle, does not qualify for the VTL §1103(b) exemption because he was traveling outside of the boundaries of the municipality, between sites, and was not actually engaged in work on a highway. Specifically, plaintiff asserts that the police accident report indicates the location of the collision being outside of Tarrytown and points to the affidavit of plaintiff Bellantoni in support of the claim that the plow was disengaged at the time of the collision. Plaintiff thus concludes that the affirmative defense should be dismissed. In opposition to the motion, the defendants submit the affidavit of Defendant Avery and contend that Avery was actually engaged in work on a highway at the time of this accident. Prior to and leading to the collision, Avery was plowing snow and spreading salt, and as a reasonable part of his route, he intended to make a U-turn to return to his assigned route. Contrary to plaintiff’s reasoning, Defendants assert that VTL §1103(b) applies to hazard vehicles engaged in work even if the work was unassigned and was performed at the operator’s own initiative, and even if the work was performed on a roadway located outside of the operator’s normal beat or run. Defendants thus maintain that Avery cannot be found liable based on negligence pursuant to VTL §1103(b). In reply, plaintiff insists that because Avery was not assigned to plow Route 119, deviating from the municipal boundary on Route 119 for 0.65 miles, he should no longer be considered actually engaged in work on a highway. The Court has fully considered the submissions of the parties. “Section 1103 (b) states that a vehicle ‘actually engaged in work on a highway’ is exempt from the rules of the road. The statute does not require that a vehicle be located in a designated ‘work area’ in order to receive the protection” (Riley, 95 NY2d at 468). A hazard vehicle is “actually engaged in work” when it performs construction, repair, maintenance, or similar work (id. at 464). However, when a hazard vehicle is not actively performing its function, courts will sometimes find it “actually engaged in work on a highway” when the deviation from actual work is minimal and necessary (see Skolnick v. Town of Hempstead, 278 AD2d 481 [2d Dept 2000]). For instance, on one side of the spectrum, in Skolnick, the court held that VTL §1103(b) applied to a maintenance truck that was not actively cleaning drains when defendant’s truck was traveling the wrong way on Mulberry Lane, a one-way street, after having “just cleaned the three storm drains” at the intersection of Mulberry Lane and Chestnut Street (278 AD2d at 482). On the other side of the spectrum, in Davis v. Incorporated Vill. of Babylon (13 AD3d 331, 332 [2d Dept 2004]), a street sweeper that had returned to the home base for the operator to use the bathroom and then proceeded one quarter of a mile en route to the next assigned sweeping route when the accident happened was not seen as actually engaged in work. If Avery was not engaged in snowplowing at the moment of the accident, the matter at bar is more similar to Skolnick than Davis because Avery had just plowed one side of Route 9, did not stop anywhere to take a break, and was trying to return to Route 9 to finish the other side of the road. The fact that the Skolnick defendant’s truck exiting its assigned work area was seen as actually engaged in work supports the position that a snowplow completing its assigned work without taking a break should be seen as actually engaged in work if its deviation from the assigned route is minimal and necessary to completing its assigned work. Furthermore, the fact that defendant’s vehicle was outside of the municipal boundary and away from its assigned “work area” on Route 9 does not automatically deprive defendants of the exemption pursuant to VTL §1103(b). The contradictory claims in plaintiff driver’s and defendant driver’s affidavits raise a triable issue of fact as to whether defendant was actually engaged in highway maintenance at the time of the accident and therefore, whether defendants are entitled to the protections afforded by §1103(b). Even if Avery was not engaging in snowplowing and salt spreading, it cannot be said as a matter of law that he was not “actually engaged in work on a highway” when proceeding 0.65 miles away from the municipality to make a U-turn to go back to his assigned route. The motion to dismiss the Eleventh affirmative defense is denied. As the Eleventh affirmative defense has not been dismissed, plaintiff to be entitled to summary judgment must eliminate all triable issues of fact as to whether Avery acted with reckless disregard for the safety of others. In order to fulfill this burden, a plaintiff is required to prove 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 NY2d 494, 501[1994]). Plaintiff has not met his higher burden of proof as required by VTL §1103(b). Hence, plaintiff fails to make prima facie showing of entitlement to judgment as a matter of law on liability. Accordingly, it is hereby ORDERED that the branch of plaintiff’s motion for partial summary judgment on liability is denied; and it is further ORDERED that the branch of plaintiff’s motion seeking to dismiss the defendants’ First, Second, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, And Twelfth affirmative defenses is granted; and it is further ORDERED that the branch of plaintiff’s motion seeking to dismiss the defendants’ Eleventh affirmative defense is denied; and it is further ORDERED that, within ten (10) days of the date hereof, defendants shall serve a copy of this Decision and Order, with notice of entry, upon plaintiff; and it is further ORDERED that within ten (10) days of service of notice of entry, defendants shall file proof of said service via NYSCEF The foregoing constitutes the Decision and Order of the Court. Dated: July 14, 2023
