State Farm Mut. Auto. Ins. Co. v City of Auburn
Annotate this CaseDecided on November 17, 2004
City Court of Auburn
STATE FARM MUTUAL AUTOMOBILE INS. CO., AS SUBROGEE OF Lisa CRUPE, , Plaintiff, .
against
CITY OF AUBURN, Defendant.
CI040051
For the Plaintiff: Austin A. Duvernoy, Esq., Box 7001, Ithaca, New York 14851
For the Defendant: Petrone & Petrone, 800 Olympic Towers, 300 Pearl Street, Buffalo, New York 14202
MICHAEL F. McKEON, J.
Defendant City of Auburn moves for summary judgment pursuant to CPLR Section 3212 on grounds that Vehicle and Traffic Law Section 1103 precludes recovery by the plaintiff, State Farm Mutual Automobile Insurance as subrogee of Crupe.
This property damage action arose out of a collision between a snow plow owned by the defendant, and operated by an employee, Dave Plish, (Plish) and a motor vehicle owned and operated by the plaintiff's subrogor, Lisa Crupe (Crupe). The collision occurred on December 4, 2002 in the City of Auburn on Genesee Street, resulting in property damage to Crupe's vehicle.
As set forth in the 50-h hearing testimony of Crupe and the affidavit of Plish, Plish had been called into plow at 3:00 A.M. and was plowing on Perry Street heading south. Crupe was heading west on Genesee Street when, as she passed Perry Street, a street which intersects Genesee Street at a right angle, was struck in the right rear door by the plow. Plish contends he stopped at the stop sign at the intersection, with his four way backup lights and flashing strobe lights in operation, intending to push the snow at the intersection around the corner, when he misjudged Crupe's vehicle clearing the intersection and struck the rear of her vehicle. Crupe was unable to testify as to whether Plish stopped at the stop sign but did testify she thought he was slowing down. Crupe however, did testify the snowplow blade was in the up position, contrary to Plish's affidavit. No tickets were issued to Plish as a result of the accident.
It is well settled in New York that a hazard vehicle engaged in work on a highway is [*2]exempt from the rules of the road and is entitled to the same standard of care as emergency vehicles Riley vs County of Broome 95 NY2d 455 (2000). (Plaintiff does not dispute that the defendant's snowplow is a hazard vehicle within the meaning of Vehicle and Traffic Law Section 117-a.) Thus to succeed on its claim, plaintiff must show that Plish acted recklessly (Bliss vs State of New York 95 NY2d 911 (2000) that is, in reckless disregard of a known or obvious risk that was so great as to make it highly probably that harm would follow Guereschi vs Bouchard 286 AD2d 997 ( 2001). Proving simple negligence is insufficient to establish liability.
Plaintiff contends that because the snow plow was in the raised position, Plish was not engaged in work on a highway at the time of the collision as required by Vehicle and Traffic Law Section 1103. Plaintiff's argument while interesting must fail. It is not disputed that Plish was called in to snow plow in the early morning hours of December 4th, nor is it disputed that he was plowing Perry Street just prior to the collision. Assuming for purposes of this motion that the plaintiff's subrogor was correct in her observation the plow was in the raised position, that fact if true, only indicates that Plish raised his plow at the intersection and is not proof that he had ceased plowing operations. Indeed the plaintiff has failed to set forth any facts disputing Plish's statement that he was plowing on Perry Street and was turning right to continue plowing on Genesee Street, nor has proof been submitted that Plish was traveling to or from a hazardous operation, in which case the exemption from safety rules would not apply. Indeed the undisputed facts are to the contrary (see Sullivan vs Town of Vestal 301 AD2d 824 (2003).
Additionally, plaintiff claims that Plish may have been fatigued or had other accidents previously are not supported by the record and do not raise a triable issue of fact warranting a trial. Unlike in Bliss(supra) where the Court of Appeals found a triable issue as to whether the driver acted recklessly where the driver pled guilty to unsafe backing down a narrow incline on a bridge with no rear view mirror on a heavily traveled interstate highway and in addition violated several NYSTA safety directives, the conduct here involves the driver simply misjudging the clearance factor which amounts to nothing more than ordinary negligence. Indeed , a misjudgement in clearance of a vehicle in an intersection was not a decision on Plish's part to ignore a grave risk likely to result in harm to others but rather a failure to observe and judge correctly the speed of a vehicle, and then pulling out into the intersection. Such actions, while clearly negligence on the part of Plish are not sufficient to rise to the level of recklessness. See McDonald vs State 176 Misc 2d 130 (1998).
The plaintiff having failed to present any triable issue of fact that Plish acted recklessly, summary judgement is hereby granted to the defendant and plaintiff's complaint dismissed without costs.
Auburn, New York
Dated November 17, 2004
___________________________ Hon. Michael F. McKeon
City Court Judge
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