MESSINA v. TOWN OF HUNTINGTON (2025)

Upon the following papers read on defendant Town of Huntington's motion pursuant to CPLR 3212 seeking an order dismissing plaintiff's complaint as asserted against it and all cross-claims: NYSCEF documents 1 thru 44; it is hereby

ORDERED defendant Town of Huntington's motion for summary judgment in its favor dismissing plaintiff's complaint is denied.

Plaintiff, Vincent Messina ¹ , commenced this action on June 3, 2022, to recover damages for personal injuries alleged as a result of a motor vehicle accident on January 31, 2022. Plaintiff alleges that on January 31, 2022, he was operating a 2014 Kia and he was struck by a 2018 Mack Truck owned by the Town of Huntington, and being operated by Neal Ehrenberg, a Town of Huntington employee. On February 22, 2022, plaintiff filed a notice of claim containing a certified police report and various photographs. On August 29, 2022, defendants collectively answered. Discovery has been completed, and a note issue was filed on March 7, 2024.

Defendant, Town of Huntington only, now moves pursuant to CPLR 3212, for an order dismissing plaintiff's complaint and “all cross-claims.” No cross-claims are asserted in defendant Neal Ehrenberg's answer, which was collectively filed by the Huntington Town Attorney. Defendant Neal Ehrenberg does not join in the motion to dismiss. In any event, in support of the motion, defendant Town of Huntington submits, among other things, the pleadings, an affirmation of counsel, an uncertified national weather service text product, a Huntington Town news feed from the Town's website, an email exchange with GEICO, the deposition transcripts of the parties, various photographs, an incident report, defendant Neal Ehrenberg's MV-104, and a GPS report. In opposition, plaintiff submits an affirmation of counsel and a google maps photograph. In reply, defendant Town of Huntington submits an affirmation of counsel.

At the outset, the Court does not consider the email statements of GEICO, plaintiff's insurer. First, the emails are not in admissible form. More importantly, communication between insurance adjusters and claims examiners are not concessions of liability (Polak v Farley, 295 AD2d 961, 745 NYS2d 354 [4th Dept 2002]). Third, in reply defendant Town of Huntington's counsel admits that GEICO's communication is not admissible. The Court has also not considered the conclusions of the police officer, John Ottoman, who completed the police report. While that report is certified, addressing one level of hearsay, it is undisputed that the Officer Ottoman did not witness the accident. Accordingly, his opinions of the cause of the accident, contained in boxes 21 and 22 of the report, are not admissible (Memenza v Cole, 131 AD3d 1020, 16 NYS3d 287 [2d Dept 2015]; CPLR 4518 [a]). Specifically, CPLR 4518 (a) provides:

Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. In addition, the writing or record must have been made upon the recorder's own personal knowledge or from information given to the recorder by someone with personal knowledge and a business duty to transmit the information accurately.

Here, there has been no showing of who gave the police officer the information contained in the conclusion portions of the report, nor whether those individual(s) had a business duty to transmit the information accurately. Accordingly, the police officer's conclusions are not admissible.

The proponent of a summary judgment motion must make prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., supra). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra). Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment (CPLR 3212 [b]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). As the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, evidence must be viewed in the light most favorable to the nonmoving party (see Chimbo v Bolivar, 142 AD3d 944, 37 NYS3d 339 [2d Dept 2016]; Pearson v Dix McBride, LLC, 63 AD3d 895, 883 NYS2d 53 [2d Dept 2009]; Kolivas v Kirchoff, 14 AD3d 493, 787 NYS2d 392 [2d Dept 2005]).

Defendant Town of Huntington maintains that on January 28-29, 2022, a winter storm struck Long Island and the Town of Huntington and that Huntington Town Supervisor Smyth “declared a Snow Emergency effective 7:30 p.m. Friday, ahead of the forecasted snow storm.” On Saturday January 29, 2022, the Supervisor advised that 12 to 18 inches of snow were expected. Neither document that the defendant Town of Huntington relies upon for these statements are in admissible form (see CPLR 4528, absent is an authentication from the United States Weather Bureau; also absent from the moving papers is an affidavit from the Supervisor Smyth). In any event, two days later on January 31, 2022, at 7:00 a.m. at Long Island Expressway South Service Road at its intersection with Carlls Straight Path, the parties agree that a collision occurred between the Town of Huntington's Mack Truck, which earlier in the morning was utilized as a snow plow and salt spreader, operated by the nonmoving defendant Neal Ehrenberg, and plaintiff's 2014 Kia.

Defendant Town of Huntington argues that Vehicle and Traffic Law § 1103 (b) applies here. That section provides that:

Unless specifically made applicable, the provisions of this title, except the provisions of sections eleven hundred ninety-two through eleven hundred ninety-six of this chapter, shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway nor shall the provisions of subsection (a) of section twelve hundred two apply to hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway but shall apply to such persons and vehicles when traveling to or from such hazardous operation. The foregoing provisions of this subdivision shall not relieve any person, or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway from the duty to proceed at all times during all phases of such work with due regard for the safety of all persons nor shall the foregoing provisions protect such persons or teams or such operators of motor vehicles or other equipment from the consequences of their reckless disregard for the safety of others.

In other words, vehicles, including snowplows, that are engaged in work on a highway are exempt from the rules of the road. Their drivers are held to a recklessness standard of care, which is a higher standard than ordinary negligence.

Neal Ehrenberg testified that he was operating a six-wheel Mack Dump Truck with an attached snowplow for defendant Town of Huntington out of the Elwood Facility for the Department of Highways. He testified he began his workday at 2 a.m. and he was placed on snow removal duty which involved clean-up including plowing, sanding, and salting areas that were not plowed over the weekend. He testified that it did not snow the night before and it was not snowing or raining at the time of the accident. At the time of the accident he was not salting, sanding, or plowing. He was travelling on the south Service Road heading eastbound to the Elwood Facility. He admitted that he was making a left turn from the right lane. However, he testified that he was headed back to the Elwood Highway Department facility to obtain more sand and salt, as there was more to do, and his supervisor was waiting for him.

In order for V&TL § 1103 to apply here as urged by the defendant Town of Huntington, the key factor is whether the vehicle was actually engaged in work (In Lynch-Miller v State, 209 AD3d 1294, 176 NYS3d 404 [4th Dept 2022], there was a genuine issue of material fact as to whether the snowplow was actually on its “run” or “beat” at the time of the incident. As such, summary judgment was precluded. The plow itself there was up, but this was not necessarily dispositive).

A snowplow driver who is “actually engaged in work on a highway” is exempt from most rules of the road and is liable only for damages incurred through acts that are in “reckless disregard for the safety of others.” Actual engagement in work means exactly what it says (In Perez v City of Yonkers, 204 AD3d 711, 163 NYS3d 859 (2d Dept 2022), the snowplow driver testified that he was not driving a plow route at the time of the accident but was instead driving from “complaint site to complaint site” in order to salt or plow those areas as needed. At the time of the accident, the driver was not at a “complaint site” and, in fact, the plow was raised and not engaged with the roadway. Accordingly, the rules of the road exception in Perez were not applicable.

The defendant Town of Huntington urges the Court to consider Riley v County of Broome, 95 NY2d 455, 719 NYS2d 623 (2000), but in Riley, Betty Riley collided with a street sweeper, that “was cleaning the street” as it straddled the shoulder of the road or actually engaged in highway work at the time of the accident. The Second Department applied the reckless standard in Skolnick v Town of Hempstead, 278 AD2d 481, 718 NYS2d 81 (2d Dept 2000), where Saul Skolnick was struck by a Town truck traveling the wrong way on Mulberry Lane, a one-way street, where the Town worker “had just cleaned three storm drains at the intersection” finding the Town truck was “actually engaged in work on a highway”. In Matsch v Chemung County Dept. of Public Works, 128 AD3d 1259, 9 NYS3d 724 [3rd Dept 2015], the street sweeper was engaged in work on a highway but did not have the sweeper boom lowered at the time of the accident rather it was circling to make additional passes to pick up gravel. The Third Department determined the County driver was engaged in actual work on the roadway, but noted that the exception does not apply where the person is traveling to or from the hazardous operation (Sullivan v Town of Vestal, 301 AD2d 824, 753 NYS2d 607 [3rd Dept 2003]). In Davis v. Inc., Vil. Of Babylon, 13 AD3d 331, 786 NYS2d 550 [2d Dept 2004], the street sweeper “was merely traveling from one work site to another, and therefore, the defendants [were] not entitled to invoke the exemption of Vehicle and Traffic Law § 1103 (b)”.

In opposition, plaintiff relies upon Qosaj v Village of Sleepy Hollow, 223 AD3d 29, 201 NYS23d 226 (2d Dept 2023), where the Second Department concluded that the defendant driver was not actually engaged in work on a highway at the time of the accident because the act of transporting gravel to a highway worksite does not itself constitute construction, repair, maintenance, or similar work on a highway. “When a vehicle travels on a highway to transport equipment or materials, the road itself is not being worked on; instead, the road is being used for its intended purpose of facilitating travel. Moreover, the mere transporting of materials or equipment is different in kind from acts that have been deemed to constitute work “on” a highway, such as clearing or cleaning the road or its shoulder”. Likewise, in Perez v City of Yonkers, 204 AD3d 711, 163 NYS3d 859 [2d Dept 2022], because the snow plow operator was not driving on a particular plow route but instead was traveling from complaint site to complaint site to salt or plow those roads as needed the rules of the road exemption contained in Vehicle and Traffic Law § 1103 (b) was held not to be applicable. In Horton v Rigney, 221 AD3d 671, 199 NYS3d 166 [2d Dept 2023], the exemption did not apply because Rigney testified that 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.

Here, defendant Town of Huntington has failed to establish a prima facie entitlement to summary judgment as the exemption of Vehicle and Traffic Law § 1103 (b) does not apply. Neal Ehrenberg was “not engaged in highway work” at the time of the accident as his plow was in the up position, and he was not sanding or salting the roadway. Ehrenberg's return to the Elwood facility to pick up more sand or salt is more analogous to the situation in Qosaj v Village of Sleepy Hollow, 223 AD3d 29, 201 NYS23d 226 (2d Dept 2023) and Perez v City of Yonkers, 204 AD3d 711, 163 NYS3d 859 (2d Dept 2022), than Riley v County of Broome, 95 NY2d 455, 719 NYS2d 623 (2000). On October 17, 2024, the Court of Appeals in Orellana v Town of Carmel, 42 NY3d 526, 224 NYS3d 1 (2024) definitively answers the question here, as the snow plow operator was not actually engaged in work on a highway but was merely traveling between work sites not actively performing any protected task on the road itself the exemption of Vehicle and Traffic Law § 1103 (b) does not apply. Accordingly, defendant Town of Huntington's motion for summary judgment is denied.

The Assistant Town Attorney's gratuitous comments in reply that plaintiff position that Neal Ehrenberg was “not engaged in any work” and “not engaged in active work” is “an insult to all snow plow operators who work long hours to plow and salt the vast highways and roadways so first responders can provide necessary services and citizens can get to work, school and their intended destinations”, is uncalled for and sanctionable. Nothing contained in this decision should be construed as anything but respectful to operators of street sweepers, heavy duty equipment drivers, and snow plow operators.

Finally, the Court has considered all of the law presented by the parties despite their failure to comply with this Court's rules and 22 NYCRR 202.8 (c) which require affidavits for statements of the relevant facts and memorandum of law for a statement of the relevant law as opposed affirmations containing arguments of law.

FOOTNOTES

1.   Plaintiff Vincent Messina is not the Honorable Vincent J. Messina of the Suffolk County Surrogate's Court

Paul M. Hensley, J.