ROBERTS, GEORGE J. v. ANDERSON, MICHAEL J. , 19 N.Y.S.3d 843 ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1265
CA 15-00693
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.
GEORGE J. ROBERTS, PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
MICHAEL J. ANDERSON, MICHAEL SCHRADER AND TOWN
OF AMHERST, DEFENDANTS-RESPONDENTS.
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.
Appeal from an order of the Supreme Court, Erie County (Timothy
J. Drury, J.), entered December 23, 2014. The order, among other
things, granted the motion of defendants for summary judgment and
dismissed the complaint.
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 NY2d 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
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CA 15-00693
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).
Entered: November 20, 2015 Frances E. Cafarell
Clerk of the Court