State Farm Mut. Auto. Ins. Co. v Town of Babylon

[*1] State Farm Mut. Auto. Ins. Co. v Town of Babylon 2005 NY Slip Op 51528(U) [9 Misc 3d 128(A)] Decided on September 20, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 20, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ.
2004-1699 S C

State Farm Mutual Automobile Insurance Co. a/s/o JORDAN WILSON, Appellant, THE

against

Town of Babylon, Respondent.

Appeal from an order of the District Court of Suffolk County, Third District

(C. Steven Hackeling, J.), dated October 12, 2004. The order granted defendant's motion for summary judgment.

Order unanimously affirmed without costs.

Plaintiff insurance company, as subrogee of its insured, commenced this action to recover damages as a result of an accident in which defendant's snowplow allegedly struck and damaged a vehicle owned by the subrogor. After issue was joined, defendant moved for summary judgment, claiming that the testimony of plaintiff's subrogor at his examination before trial demonstrated that plaintiff could not establish that the snowplow was operated with reckless disregard for the safety of others. Plaintiff opposed the motion, arguing that it need only establish that the snowplow was operated negligently. The District Court granted defendant's motion for summary judgment and this appeal ensued.

In Riley v County of Broome (95 NY2d 455 [2000]), the Court of Appeals held that pursuant to Vehicle and Traffic Law § 1103 (b), the drivers of all vehicles owned or operated by the federal, state or local government, regardless of their classification, are excused from the rules of the road when they are actually engaged in work on a highway. As a result, to recover damages for an accident which occurred when such a vehicle was actually engaged in work on a [*2]highway, a plaintiff must show that defendant acted with reckless disregard for the safety of others (id. at 465-468). Subsequent to said decision, there have been a number of appellate decisions recognizing that a plaintiff cannot prevail by showing ordinary negligence and that a plaintiff must establish reckless disregard for the safety of others (see e.g. Primeau v Town of Amherst, 17 AD3d 1003 [2005]; New York State Elec. & Gas Corp. v State of New York, 14 AD3d 675 [2005]; Farese v Town of Carmel, 296 AD2d 436 [2002]; [*3]
Skolnick v Town of Hempstead, 278 AD2d 481 [2000]; New York Cent. Mut. Fire Ins. Co. v Bellini, 2 Misc 3d 40 [App Term, 9th & 10 Jud Dists 2003]). Consequently, defendant's motion for summary judgment was properly granted.
Decision Date: September 20, 2005