HORTON v. RIGNEY (2023)

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated May 27, 2022.  The order denied the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action, inter alia, to recover damages for personal injuries he allegedly sustained when his vehicle was struck by a snowplow operated by the defendant Nicholas F. Rigney and owned by the defendant Town of Babylon.  The defendants moved for summary judgment dismissing the complaint, contending that at the time of the accident, Rigney was actually engaged in work on a highway and that he did not act with reckless disregard for the safety of others within the meaning of Vehicle and Traffic Law § 1103(b).  The Supreme Court denied the defendants’ motion.  The defendants appeal.

Pursuant to Vehicle and Traffic Law § 1103(b), a snowplow operator that is “actually engaged in work on a highway” is exempt from the rules of the road and may be held liable only for damages caused by an act done “[in] reckless disregard for the safety of others” (see Perez v. City of Yonkers, 204 A.D.3d 711, 712, 163 N.Y.S.3d 859;  Ventura v. County of Nassau, 175 A.D.3d 620, 621, 107 N.Y.S.3d 369;  Joya v. Baratta, 164 A.D.3d 772, 772–773, 79 N.Y.S.3d 574).  “The courts have interpreted the language ‘actually engaged in work on a highway’ (Vehicle and Traffic Law § 1103[b]) to mean that the exemption from the rules of the road ‘applies only when such work is in fact being performed at the time of the accident’ ” (Perez v. City of Yonkers, 204 A.D.3d at 712, 163 N.Y.S.3d 859, quoting Hofmann v. Town of Ashford, 60 A.D.3d 1498, 1499, 876 N.Y.S.2d 588).

Here, the defendants’ submissions in support of their motion failed to establish, prima facie, that Rigney was actually engaged in work on a highway at the time of the subject incident (see Perez v. City of Yonkers, 204 A.D.3d at 712, 163 N.Y.S.3d 859).  Based on Rigney's own deposition testimony, at the time of the accident, he was not yet driving on his intended plow route but rather was traveling from his home base facility to another road to start his plow route, and the defendants’ submissions were otherwise inconsistent as to whether the plow was raised or in a down position just prior to the accident.  Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

In light of our determination, we need not reach the parties’ remaining contentions.

BRATHWAITE NELSON, J.P., FORD, DOWLING and TAYLOR, JJ., concur.