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Frank Sorrentino, Respondent v. Village of Lynbrook

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


April 2, 2012

FRANK SORRENTINO, RESPONDENT,
v.
VILLAGE OF LYNBROOK, APPELLANT.

Appeal from a judgment of the District Court of Nassau County, Second District (Martin J. Massell, J.), entered October 26, 2010.

Sorrentino v Village of Lynbrook

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 2, 2012

PRESENT: MOLIA, J.P., NICOLAI and LaCAVA, JJ

The judgment, after a non-jury trial, awarded plaintiff the principal sum of $2,100.

ORDERED that the judgment is reversed, without costs, and the action is dismissed.

Plaintiff commenced this small claims action for "money owed" by the filing of a summons and endorsed complaint. On a small claims complaint form, plaintiff alleged that defendant's employee had damaged the front of his building during snow removal and noted that the "village employee admitted the accident." Following a non-jury trial, the District Court awarded plaintiff the principal sum of $2,100.

Upon a review of the record, we find that the judgment in favor of plaintiff did not render substantial justice between the parties (see UDCA 1807). To recover damages for an accident which occurred when a snow plow owned or operated by the federal, state or local government is engaged in snow removal, a plaintiff must show, under Vehicle and Traffic Law § 1103 (b), that the driver exhibited a "reckless disregard" for the safety of others (see State Farm Mut. Auto. Ins. Co. v Town of Babylon, 9 Misc 3d 128[A], 2005 NY Slip Op 51528[U] [App Term, 9th & 10th Jud Dists 2005], citing Riley v County of Broome, 95 NY2d 455 [2000]; see also Primeau v Town of Amherst, 5 NY3d 844 [2005]; Rockland Coaches, Inc. v Town of Clarkstown, 49 AD3d 705 [2008]). Recovery under the reckless disregard standard of Vehicle and Traffic Law § 1103 (b) requires more than a showing of ordinary negligence. Rather, there must be proof that "the actor has intentionally done an act of unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would result and has done so with conscious indifference to the outcome" (Riley v County of Broome, 95 NY2d at 466 [internal quotations and citations omitted]). In the instant case, plaintiff failed to satisfy his burden of showing that the damages were caused by the snow plow operator's reckless disregard of a known or obvious risk; plaintiff repeatedly characterized the incident as an "accident," without adducing further proof of the driver's conduct.

As the requisite standard for liability was not met, the judgment is reversed and the action dismissed.

Molia, J.P., Nicolai and LaCava, JJ., concur.

Decision Date: April 02, 2012

20120402

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