Nationwide Mut. Ins. Co. v Town of Cheektowaga

[*1] Nationwide Mut. Ins. Co. v Town of Cheektowaga 2006 NY Slip Op 50384(U) [11 Misc 3d 1064(A)] Decided on March 17, 2006 Buffalo City Ct Manz, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2006
Buffalo City Ct

Nationwide Mutual Insurance Co., as Subrogee of Lisa A. Tolnay, Plaintiff,

against

Town of Cheektowaga and Timothy T. Jaworowicz, Defendants.



B69669



Eric D. Handelman, Esq.

Handelman, Witkowicz & Levitsky

16 Main Street East, Suite 410

Rochester, New York 14614

Attorneys for Plaintiff

Stephanie G. Elliott, Esq.

Chelus, Herdzik, Speyer, Monte & Pajak, P.C.

1000 Main Court Building

438 Main Street

Buffalo, New York 14202-3208

David M. Manz, J.

The plaintiff is seeking to recoup payments it made for property damage to the motor vehicle of it's insured; which was involved in a motor vehicle accident with a municipal sanitation truck which was owned and operated by the defendants. The sanitation truck was not in the process of picking up any refuse at the time of the accident, but was simply stopped for a red light during the course of the workday. The driver of the sanitation truck could not recall where his last stop was prior to the accident or where he was proceeding to when the accident occurred.

While in the process of making a right hand turn, the sanitation truck collided with the [*2]plaintiff's insured; who was also attempting to turn right while on the shoulder of the same lane of travel as the defendants' vehicle. The plaintiff is claiming that the defendants' vehicle did not use it's turn signal prior to beginning the turn. The defendants deny this claim.

All parties have been deposed, and the defendants are now moving for summary judgment. The defendants are claiming that the protection of Vehicle & Traffic Law §1103 (b), which requires a showing of reckless disregard in order for liability to attach, applies to the defendants operation of the municipal sanitation truck in this case. The plaintiff has opposed that motion and has cross-moved for partial summary judgment seeking the application of the ordinary negligence standard of care to this action.

FINDINGS OF THE COURT

The fact that a municipal vehicle is being operated on a public highway during the course of the operator's work day is not enough in and of itself to afford that vehicle the protections of Vehicle & Traffic Law §1103 (b). The vehicle must be "actually engaged in work on the highway" at the time of the accident, and not merely traveling from one work site to another, in order to be afforded the protection of Vehicle & Traffic Law §1103 (b). Davis v. Village of Babylon, 13 AD3d 331, 332 (2nd Dept., 2004), Marvin v. Middlesex, 2002 WL 58928, 2002 NY Misc. Lexis 1394, affd, 300 AD2d 1112 (4th Dept, 2002), Vehicle & Traffic Law §1103 (b).

This court holds that a municipal sanitation truck which is simply being operated on a public highway during the course of the operator's work day and is not engaged in the actual starting, stopping and related processes of picking up refuse, is not "actually engaged in work on a highway" as required by statute and therefore cannot be afforded the protections of Vehicle & Traffic Law §1103 (b) when it is involved in a motor vehicle accident, wherefore,

IT IS HEREBY ORDERED, that the defendants motion for summary judgment is denied and the plaintiff's cross motion for partial summary judgment on the application of the ordinary negligence standard of care to this action is hereby granted.

This decision constitutes the order of this Court.

Hon. David M. Manz

Buffalo City Court Judge

Dated: March 17, 2006