BICCHETTI v. COUNTY OF NASSAU (2008)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Parga, J.), entered August 14, 2006, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

An employee of the defendant County of Nassau was operating a vehicle engaged in snow removal operations on a highway.   Therefore, his performance of that activity is subject to the standard of Vehicle and Traffic Law § 1103(b), which requires due regard for the safety of others and sets a recklessness standard in determining the liability to others arising from the performance of the work.   In order for the plaintiff to recover damages for injuries caused by the operation of a vehicle subject to the provisions of Vehicle and Traffic Law § 1103(b), the plaintiff “must show that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome” (Riley v. County of Broome, 95 N.Y.2d 455, 719 N.Y.S.2d 623, 742 N.E.2d 98 [citation and internal quotation marks omitted];  see Levine v. GBE Contracting Corp., 2 A.D.3d 596, 768 N.Y.S.2d 357;  Farese v. Town of Carmel, 296 A.D.2d 436, 745 N.Y.S.2d 197).

The County failed to establish its prima facie entitlement to judgment as matter of law by “tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   The record presents triable issues of fact as to the County employee's conduct in the course of plowing snow, thereby precluding summary judgment (see O'Keeffe v. State of New York, 40 A.D.3d 607, 835 N.Y.S.2d 434).