United States District Court, S.D. New York
December 2, 2005.
JORGE OLIVEIRA, Plaintiff,
CITY OF MOUNT VERNON, Defendants.
The opinion of the court was delivered by: COLLEEN McMAHON, District Judge
DECISION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF'S CROSS-MOTION FOR SUMMARY
Plaintiff Jorge Oliveira filed this action against the City of
Mount Vernon for personal injuries sustained when he was
allegedly struck in the back by a snowplow owned and operated by
defendant. Defendant moves for summary judgment on the ground
that, under New York Vehicle and Traffic Law § 1103(b),*fn1
the snowplow operator was "actually engaged in hazardous
operation," and thus is held to a recklessness rather than a
basic negligence standard. The court agrees with defendant and
finds that, based on the evidence contained in the record, no
reasonable trier of fact could conclude that the operator of the
snowplow that allegedly struck plaintiff acted with reckless
disregard. Accordingly, defendant's motion for summary judgment
is granted and plaintiff's cross-motion for summary judgment is
The relevant facts, as set forth in the Complaint, the parties'
Rule 56.1 Statements, and other materials submitted in connection
with defendants' motion for summary judgment and plaintiff's
cross-motion for summary judgment, are as follows:
At approximately 9:40 a.m. on January 24, 2004, following a
heavy snowfall, plaintiff was scraping snow and ice from the
windshield of his car, when he was struck in the back by an
object that felt like a "mallet" or "hammer." (Complaint
("Cplt.") ¶ 10; Oliveira Dep. at 59). Plaintiff's car was parked
on the street in front of his house at 144 Stevens Avenue in the
City of Mount Vernon. (Cplt. ¶ 10). Plaintiff did not see or hear
a snowplow prior to the accident or as he fell to the ground.
(Oliveira 50-H Tr. at 26; Oliveira Dep. at 61). Nevertheless,
plaintiff alleges that he was struck by a snowplow, which was
traveling down the same block of Stevens Avenue at the time he
was hit. (Pl.'s 56.1 St. ¶ 3).
Carmine Busa, who was operating the snowplow at issue, had been
assigned to plow Stevens Avenue and the surrounding streets in
the center of the City of Mount Vernon. (Def.'s 56.1 St. ¶ 16).
Mr. Busa was plowing the intersection of Stevens Avenue and
Lincoln Avenue when he received a call from headquarters
directing him to plow the City Hall area, approximately three
blocks away. (Busa Dep. at 38-40). Mr. Busa traveled down Stevens
Avenue on his way to City Hall. (Id.).
About 30 minutes later, he was stopped by a man who suggested
that Mr. Busa might have hit a pedestrian as he drove down
Stevens Avenue. (Busa Dep. at 40). Thereafter, Mr. Busa returned
to the scene of the accident and called for an ambulance, police
and a foreman from the Department of Public Works. (Busa Dep. at
45). As a result of the accident, plaintiff sustained serious
injuries to his back, requiring spinal surgery. (Cplt ¶ 12; Pl.'s
Mem. Of Law at 5).
Standard of Review
A party is entitled to summary judgment pursuant to Rule 56
when there is no "genuine issue of material fact" and the
undisputed facts warrant judgment for the moving party as a
matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986). In addressing a motion for summary
judgment, "the court must view the evidence in the light most
favorable to the party against whom summary judgment is sought
and must draw all reasonable inferences in [its] favor."
Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.,
475 U.S. 574 (1986). Whether any disputed issue of fact exists is for
the Court to determine. Balderman v. United States Veterans
Admin., 870 F.2d 57, 60 (2d Cir. 1989). The moving party has the
initial burden of demonstrating the absence of a disputed issue
of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986).
Once such a showing has been made, the non-moving party must
present "specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56(e). The party opposing summary
judgment "may not rely on conclusory allegations or
unsubstantiated speculation" and "must do more than simply show
that there is some metaphysical doubt as to the material
facts." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998);
Matsushita Elec. Indus. Co., 475 U.S. at 586 (citations
omitted). Moreover, not every disputed factual issue is material
in light of the substantive law that governs the case. "Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude summary judgment."
Anderson, 477 U.S. at 248. Conclusions of Law
Under § 1103(b) of New York's Vehicle and Traffic Law, all
vehicles "actually engaged in work on the highway" or in
"hazardous operation" are exempt from the "rules of the road."
Riley v. Broome, 95 N.Y.2d 455, 461 (N.Y. 2000). Specifically,
§ 1103(b) provides:
Unless specifically made applicable, the provisions
of this title, except the provisions of sections
eleven hundred ninety-two through eleven hundred
ninety-six of this chapter, shall not apply to
persons, teams, motor vehicles, and other equipment
while actually engaged in work on a highway nor shall
the provisions of subsection (a) of section twelve
hundred two apply to hazard vehicles while actually
engaged in hazardous operation on or adjacent to a
highway but shall apply to such persons and vehicles
when traveling to or from such hazardous operation.
The foregoing provisions of this subsection shall not
relieve any person, or team or any operator of a
motor vehicle or other equipment while actually
engaged in work on a highway 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.
There is a disputed issue of fact as to whether Mr. Busa was
actually plowing Stevens Avenue as he traveled down that road;
Busa says his plow was down while he traveled toward City Hall
(Busa Dep. at 37-8), but two third party witnesses testified that
the snowplow was raised as it proceeded down Stevens Avenue
(Pires Dep. at 59; Evangelista Dep. at 18). Obviously, I cannot
resolve that dispute, and should it be relevant to the resolution
of the legal issue, I would have to give the issue to a jury.
However, if I were to view the evidence in the light most
favorable to the plaintiff that is, if I were to assume that
the plow was up, not down and still conclude that driving with
the plow up constitutes being "actually engaged in hazardous
operation," rather than "traveling to or from such hazardous operation," defendant's motion could be
granted and plaintiff's denied. I do so conclude.
There is a significant body of case law applying § 1103(b) to
snowplows, but none of those cases is precisely like this one. It
is clear that, under § 1103(b), a snowplow can be "actually
engaged in hazardous operation" even if it is not pushing snow at
the moment of the accident. If, for example, the plow itself was
briefly raised so the vehicle could maneuver through an
intersection, McLeod v. State of New York, 2005 WL 1552696, *5
(N.Y.Ct.Cl. May 10, 2005), or if the plow was raised to enable
the vehicle to make a U-turn on Interstate 81, McDonald v. State
of New York, 673 N.Y.S.2d 512 (N.Y.Ct.Cl. 1998), the snowplow is
still "actually engaged in hazardous duty." But of course, those
are not our facts.
It is equally clear that snowplows are not "actually engaged in
hazardous operation" when they are involved in unauthorized
activity, driven outside of business hours, or driven outside of
their authorized geographic location. See, e.g., Niro v.
Village of Lake George, 749 N.Y.S.2d 589, 591 (3d Dept. 2002) (§
1103(b) inapplicable to defendant where snowplow operator was
plowing his own driveway, five miles from the village limits,
during off duty hours); Marvin v. Middlesex, 2002 WL 58928
(N.Y.Sup.Ct. Jan. 10, 2002) (§ 1103(b) inapplicable where
snowplow was being used to haul gravel four miles from work
site). Obviously, none of those cases addresses this situation,
In our case, the snowplow was being driven from one location
where it was engaged in plowing to another location where it was
supposed to engage in plowing. Skolnick v. Town of Hempstead,
718 N.Y.S.2d 81 (2d Dept. 2000), is not a snowplow case, but it
appears to be the most closely analogous to our facts. In
Skolnick, the court found that a maintenance truck, which was traveling the wrong way down a one-way street after
cleaning the storm drains at the end of that street, was
"actually engaged in hazardous operations" despite the fact
that the truck was not actively involved in cleaning drains at
the moment of the accident, but was leaving the place where it
had performed the cleaning.
Reasoning from Skolnick, I conclude that even if the plow
was raised Mr. Busa's snowplow was "actually engaged in
hazardous operation," as a matter of law, at the time of the
alleged incident. Busa was engaged in plowing snow (his
authorized activity) in his designated area. His supervisor
directed him to go to a different area to plow, and he did so,
using as his route the very street he was responsible for
plowing. Busa was not traveling to or from work at the beginning
or the end of his shift; he was not using his vehicle while on a
break or during off duty hours; and he was not engaged in
unauthorized activity. Rather, Busa was on the clock, following
orders from headquarters, and actively engaged in the process of
snow removal. He was engaged in the same sort of conduct as the
trucker in Skolnick. He was, therefore, exempt from the "rules
of the road."
In order for Mr. Busa to be liable under § 1103(b), he must
have "`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 probably that harm would follow' and [must have] done
so with conscious indifference to the outcome." Riley,
95 N.Y.2d at 466 (quoting Saarinen v. Kerr, 84 N.Y.2d 494, 501
(N.Y. 1994)). The record is devoid of any evidence tending to
establish that Mr. Busa acted with reckless disregard. Therefore,
no reasonable jury could conclude that Mr. Busa's conduct was
reckless under § 1103(b). Accordingly, defendant's motion for
summary judgment is granted, and plaintiff's cross-motion is
denied. See, e.g., State Farm Mut. Auto. Ins. Co. v. of Babylon, 2005 WL 2347635, *1 (N.Y.App.Term Sept. 20, 2005)
(granting defendant's motion for summary judgment in the absence
of evidence that snowplow was operated in reckless disregard for
the safety of others); Burke-Thorpe v. State of New York, 2005
WL 1920738, *2 (N.Y.Ct.Cl. Sept. 23, 2005) (same); McLeod, 2005
WL 1552696 at *5 (same); Gawelko v. State of New York,
710 N.Y.S.2d 762 (N.Y.Ct.Cl. 2000) (same).
For the foregoing reasons, the Complaint is dismissed in its
The Clerk of the Court is directed to enter judgment in favor
of defendant, and to close the file.
This constitutes the decision and order of the Court.
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