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Deborah L. Davis v. Town of Babylon (N.Y.App.Term 04/30/2013)

New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


April 30, 2013

DEBORAH L. DAVIS, APPELLANT, --
v.
TOWN OF BABYLON, RESPONDENT.

Appeal from a judgment of the District Court of Suffolk County, Second District (Stephen L. Ukeiley, J.), entered December 27, 2011.

Davis v Town of Babylon

Decided on April 30, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: NICOLAI, P.J., IANNACCI and LaSALLE, JJ

The judgment, after a non-jury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

In this small claims action, plaintiff seeks to recover the sum of $116.08 based on defendant's alleged destruction of her mailbox. Following mandatory arbitration (see Rules of Chief Judge part 28), there was a trial de novo (see Rules of Chief Judge [22 NYCRR] § 28.12]). At the non-jury trial, plaintiff testified that, during the winter of 2010 to 2011, on three separate occasions, she found that her curbside mailbox had been knocked down after her street had been plowed. She stated that, following the first two events, she was able to restore the mailbox to a functional state, but that, after the third time it had been knocked down, it was not salvageable and required replacement. Plaintiff sought to impose liability on defendant based on its alleged ownership of the snow plow. Following the trial, the District Court dismissed the action.

Contrary to plaintiff's contention, the District Court properly tried the action de novo (see Rules of Chief Judge [22 NYCRR] § 28.12). At trial, plaintiff failed to present any direct evidence of her claim that her mailbox had been destroyed by defendant's snow plow. The court refused to admit into evidence a document which plaintiff described as a petition that had been signed by her neighbors whose mailboxes had also been destroyed. The petition, as described by plaintiff, was hearsay, and while the Small Claims Part of the court is not bound by the rules of evidence (UDCA 1804), such as the rules regarding the admissibility of hearsay, "a small claims judgment may not stand on hearsay alone" (Hickey v T & E Serv. Sta., 12 Misc 3d 133[A], 2006 NY Slip Op 51183[U], *1 [App Term, 2d & 11th Jud Dists 2006], citing Zelnik v Bidermann Indus. U.S.A., 242 AD2d 227, 228 [1997]; see also Levins v Bucholtz, 2 AD2d 351 [1956]). As plaintiff failed to introduce any direct evidence of defendant's culpability, the error, if any, in refusing to admit the petition into evidence was harmless, as its admission into evidence would not have affected the determination of the action.

Moreover, even if plaintiff had established that it was defendant's snow plow which had destroyed her mailbox, plaintiff failed to establish defendant's liability therefor. A snow plow is a "hazard vehicle" (Vehicle and Traffic Law § 117-a). Hazard vehicles "actually engaged in work on a highway" are exempt from the "rules of the road" (see Riley v County of Broome, 95 NY2d 455, 462-463 [2000]; see also Vehicle and Traffic Law tit VII [entitled "Rules of the Road"]; Vehicle and Traffic Law § 1103 [b]); at such times their owners and operators may only be found liable if the hazard vehicle has been operated with reckless disregard for the safety of others (see Vehicle and Traffic Law § 1103 [b]; see also Primeau v Town of Amherst, 5 NY3d 844, 845 [2005]; Riley v County of Broome, 95 NY2d at 459). Thus, to the extent that plaintiff sought to impose liability on defendant based on the operation of its snow plow while the operator was engaged in actual work on a highway, it was incumbent on her to prove that the snow plow had been operated with reckless disregard for the safety of others. Plaintiff failed to provide any evidence to support such a finding.

We note in passing that, on appeal, plaintiff claims that she established defendant's liability under the doctrine of res ipsa loquitur. Under that doctrine, even in the absence of direct evidence of negligence, negligence may be inferred from circumstantial evidence upon a showing that the event complained of is of a kind which ordinarily does not occur in the absence of someone's negligence, that the event was caused by an agency or instrumentality within the exclusive control of the defendant, and that the event did not result from any voluntary action or contribution on the part of the plaintiff (see Morejon v Rais Constr. Co., 7 NY3d 203, 209 [2006]; Corcoran v Banner Super Mkt., 19 NY2d 425, 430 [1967]). We need not reach the issue of whether plaintiff's proof was adequate to invoke the doctrine of res ipsa loquitur since such doctrine only permits the inference of ordinary negligence and, thus, its application would, in any event, be insufficient to support a finding of reckless disregard for the safety of others, as required in order to impose liability on defendant.

We therefore conclude that the dismissal of the action rendered substantial justice between the parties according to the rules and principles of substantive law (UDCA 1804, 1807).

Accordingly, the judgment is affirmed.

Nicolai, P.J., Iannacci and LaSalle, JJ., concur.

Decision

Date: April 30, 2013

20130430

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