Louizov v City of New York
2012 NY Slip Op 30976(U)
April 9, 2012
Supreme Court, Richmond County
Docket Number: 100161/10
Judge: Thomas P. Aliotta
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
---------------------------------------X
DIMO LOUIZOV,
Part C-2
Plaintiff,
Present:
HON. THOMAS P. ALIOTTA
-againstDECISION AND ORDER
THE CITY OF NEW YORK,
Index No. 100161/10
Defendant.
Motion No. 4006-001
---------------------------------------X
The
following
papers
numbered
1
to
5
were
marked
fully
submitted the 15th day of February 2012.
Papers
Numbered
Notice of Motion for Summary Judgment by Defendants,
with Supporting Papers and Exhibits
(dated November 1, 2011).............................1
Affirmation in Opposition
(dated January 12, 2012).............................2
Reply to Plaintiff’s Opposition
(dated January 21, 2012).............................3
Letter by Defendant
(dated February 15, 2012)............................4
Letter by Plaintiff
(dated February 15, 2012)............................5
_________________________________________________________________
Upon the foregoing papers, defendant’s motion for summary
judgment and dismissal of the complaint is granted.
This is an action for personal injuries allegedly sustained by
plaintiff when his vehicle struck the rear of a Sanitation truck
owned by defendant City of New York (hereinafter the ?City?) on
March 27, 2009 at approximately 9:15 a.m.
At the time, plaintiff
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LOUIZOV v THE CITY OF NEW YORK
was attempting to switch from the left to right-hand lane of
traffic along Richmond Avenue in order to make a right-hand turn.
It is undisputed that, at the time of impact, the sanitation
vehicle was at a complete stop in the right-hand lane while
Department
of
Sanitation
employees
were
actively
engaged
in
clearing litter from the curbside (see Defendant’s Exhibit ?E?, p
15).
Once plaintiff had moved into the right-hand lane, he
?slammed? on his brakes when he apparently saw the stopped vehicle,
but with insufficient time or distance available?...crashed into
the back of the truck? (see Defendant’s Exhibit ?D?, p 22).
Plaintiff
alleges
that
the
City
employees
were
negligent
in
stopping their vehicle to collect garbage without properly warning
drivers that their vehicle had come to a halt.
In support of its motion to dismiss the complaint, the City
asserts that plaintiff has wholly failed to prove that any alleged
negligence on the part of its workers proximately caused plaintiff
to crash into the rear of its sanitation truck (see Derdiarian v
Felix Contracting Corp., 51 NY2d 308), and in so doing, relies upon
Vehicle Traffic Law (hereinafter ?VTL?) § 1128, which requires that
an operator driving on a multi-laned highway shall not change lanes
until he has ascertained that it is safe to do so.
Accordingly,
the City maintains that it has established prima facie that the
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LOUIZOV v THE CITY OF NEW YORK
accident was caused solely by plaintiff’s failure to see the
stopped sanitation vehicle.
In opposition to the motion, plaintiff attempts to raise a
triable issue of fact by asserting that he did not see any hazard
lights or cones situated around the stopped truck.
However, he
fails to cite the violation of any relevant statute or regulation
which would have contributed to his rear-end collision with the
stopped vehicle. Neither VTL § 1181, which addresses minimum speed
regulations, nor 34 Section 4-07(b)(1) of the Rules of the City of
New York (hereinafter ?RCNY?), entitled ?Obstruction of Traffic?,
diminishes or undermines the uncontroverted fact that the subject
sanitation vehicle was being operated in compliance with the
guidelines set forth in VTL § 1103(b), which has heretofore been
held to apply to vehicles engaged in highway maintenance (see Riley
v County of Broome, 95 NY2d 455).
Since it is undisputed that the sanitation truck was actually
stopped and engaged in maintenance work on a highway within the
meaning of that statute (id. at 461-463), the operative standard is
that the City may be held liable only if its vehicle is being
operated in conscious disregard of a known or obvious risk that was
so great as to make it highly probable
that harm would ensue (id.
at 465-466; Saarinen v Kerr, 84 NY2d 494, 501). In this case,
plaintiff has failed to raise any such issue of fact, e.g. whether,
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LOUIZOV v THE CITY OF NEW YORK
under the circumstances of the instant case, the sanitation truck
had been brought to a halt recklessly, thereby resulting in a risk
so great as to make it highly probable that harm would follow (see
Bliss v State of New York, 95 NY2d 911, 913, Lobello v. Town of
Brookhaven, 66 AD3d 646 ).
In this regard, plaintiff’s conclusory
statement in his opposing affidavit that he merely did ?not see any
flashing lights or any other light operating on the [sanitation]
vehicle? (see Plaintiff’s Affidavit annexed to Affirmation in
Opposition) is insufficient to raise any issue of fact which would
warrant trial.
4
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LOUIZOV v THE CITY OF NEW YORK
Accordingly, it is hereby
ORDERED, that defendant’s motion is granted and the complaint
dismissed.
E N T E R,
__/s/_________________________
Hon. Thomas P. Aliotta
J.S.C.
Dated: April 9, 2012
5
