GEORGE ROBERTS PLAINTIFF APPELLANT v. MICHAEL ANDERSON MICHAEL SCHRADER AND TOWN OF AMHERST DEFENDANTS RESPONDENTS

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Supreme Court, Appellate Division, Fourth Department.

GEORGE J. ROBERTS, PLAINTIFF–APPELLANT, v. MICHAEL J. ANDERSON, MICHAEL SCHRADER AND TOWN OF AMHERST, DEFENDANTS–RESPONDENTS.

CA 15–00693

Decided: November 20, 2015

PRESENT:  SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ. SHAW & SHAW, P.C., HAMBURG (JACOB A. PIORKOWSKI OF COUNSEL), FOR PLAINTIFF–APPELLANT. BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this action seeking damages for injuries he sustained when he was struck by the wing blade of a snowplow while he was clearing snow from his driveway.  The snowplow was operated by defendants Michael J. Anderson and Michael Schrader, who were employed by defendant Town of Amherst.  We conclude that Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint.  Defendants established in support of their motion that Anderson and Schrader were clearing snow from the road in front of plaintiff's driveway, and they thus met their initial burden of establishing that the snowplow was a vehicle “actually engaged in work on a highway” that was exempt from the rules of the road except to the extent that those operating the snowplow acted with “reckless disregard for the safety of others” (Vehicle and Traffic Law § 1103[b];  see Riley v. County of Broome, 95 N.Y.2d 455, 462–463;  Catanzaro v. Town of Lewiston, 73 AD3d 1449, 1449).  Defendants further established that Anderson and Schrader took several safety precautions before reversing the snowplow, including checking both side mirrors and sounding the horn as a warning, as well as ensuring that the snowplow's backup lights and “beeping” alert were activated while the vehicle was traveling in reverse at a slow speed.  Schrader, whose view was partially obstructed by the snowplow's raised wing blade, nevertheless informed Anderson that he was clear to reverse the snowplow, and he failed to warn Anderson of plaintiff's presence in the street just beyond the apron of the driveway.  We conclude that defendants established that the conduct of Anderson and Schrader in striking plaintiff with the snowplow “did not rise to the level of recklessness required for the imposition of liability” (Ferreri v. Town of Penfield, 34 AD3d 1243, 1243;  see Primeau v. Town of Amherst, 17 AD3d 1003, 1003–1005, affd 5 NY3d 844;  Catanzaro, 73 AD3d at 1449).  Plaintiff failed to raise a triable issue of fact in opposition to the motion (see Catanzaro, 73 AD3d at 1449;  Ferreri, 34 AD3d at 1243–1244).

Frances E. Cafarell

Clerk of the Court