Qosaj v. Vill. of Sleepy Hollow

223 A.D.3d 29

201 N.Y.S.3d 226

Flakron QOSAJ, appellant-respondent,

v.VILLAGE OF SLEEPY HOLLOW, et al., respondents-appellants.

2022–03791

Index No. 50495/21

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 13, 2023

December 13, 2023

Neimark Coffins & Lapp, LLP, New City, NY (Ira H. Lapp of counsel), for appellant-respondent.

Morris Duffy Alonso & Faley (Iryna S. Krauchanka and Gerber Ciano Kelly Brady, LLP, Garden City, NY [Brendan T. Fitzpatrick and Brian W. McElhenny ], of counsel), for respondents-appellants.

FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.

OPINION & ORDER

CHAMBERS, J.

In this action arising from a motor vehicle collision, we are asked to consider whether a vehicle transporting construction materials for use in an ongoing road repair is "actually engaged in work on a highway" within the meaning of Vehicle and Traffic Law § 1103(b), such that the driver of the vehicle will be exempt from the ordinary rules of the road and held to the "reckless disregard" standard set forth in that statute. For the reasons that follow, we conclude that the defendants’ vehicle was not "actually engaged in work on a highway" within the meaning of Vehicle and Traffic Law § 1103(b) at the time of the subject collision.

I. Factual and Procedural Background

The plaintiff in this action seeks to recover damages for personal injuries that he allegedly sustained when the vehicle that he was operating was struck in the rear by a backhoe owned by the defendant Village of Sleepy Hollow and operated by the defendant Douglas DiCariano (hereinafter the defendant driver). The plaintiff moved for summary judgment on the issue of liability, contending that the defendant driver negligently struck the plaintiff's vehicle in the rear and proximately caused his injuries. The defendants moved for summary judgment dismissing the complaint, contending, inter alia, that the defendants’ vehicle was actually engaged in work on a highway at the time of the accident, thus entitling the defendants to the application of the reckless disregard standard of care rather than that of ordinary negligence (see Vehicle and Traffic Law § 1103[b] ).

In support of the motions, the evidence proffered is that, on the day of the accident, the defendant driver had been using a backhoe to open a roadway that was collapsing due to a sewer problem. He left the job site to obtain gravel for the work, and at the time of the collision, he was on route back to the job site with the gravel.

In an order dated April 25, 2022, the Supreme Court determined that the reckless disregard standard of care applied and denied both motions. The plaintiff appeals from so much of the order as denied his motion for summary judgment on the issue of liability. The defendants cross-appeal from so much of the order as denied their motion for summary judgment dismissing the complaint.

II. Analysis

A. Overview of Vehicle and Traffic Law § 1103(b)

We begin our analysis with the general proposition that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Genao v. Cassetta, 214 A.D.3d 626, 627, 182 N.Y.S.3d 904 ; Atkins v. City of New York, 196 A.D.3d 622, 623, 151 N.Y.S.3d 680 ; Hall v. Powell, 183 A.D.3d 576, 577, 121 N.Y.S.3d 632 ; see also Vehicle and Traffic Law § 1129[a] ). Here, in opposition to the plaintiff's prima facie showing that his vehicle was struck in the rear by the defendants’ vehicle and that the defendant driver's negligence was a proximate cause of the accident (see Vehicle and Traffic Law § 1129[a] ; Balgobin v. McKenzie, 213 A.D.3d 893, 894, 182 N.Y.S.3d 669 ), the defendants argue that their vehicle was "actually engaged in work on a highway" within the meaning of Vehicle and Traffic Law § 1103(b), such that they should be held to a reckless disregard standard of care rather than an ordinary negligence standard of care (see id. ; Riley v. County of Broome, 95 N.Y.2d 455, 459–461, 719 N.Y.S.2d 623, 742 N.E.2d 98 ).

Vehicle and Traffic Law § 1103(b) provides that all vehicles, regardless of their classification, are excused from the rules of the road when "actually engaged in work on a highway" (see Riley v. County of Broome, 95 N.Y.2d at 464, 719 N.Y.S.2d 623, 742 N.E.2d 98 ), "and imposes on such vehicles a recklessness standard of care" ( Deleon v. New York City Sanitation Dept., 25 N.Y.3d 1102, 1105, 14 N.Y.S.3d 280, 35 N.E.3d 448 ; see Riley v. County of Broome, 95 N.Y.2d at 460, 719 N.Y.S.2d 623, 742 N.E.2d 98 ; Orellana v. Town of Carmel, 212 A.D.3d 834, 835, 182 N.Y.S.3d 210, lv granted, 39 N.Y.3d 916, 2023 WL 4003927 ). This "exemption turns on the nature of the work being performed" ( Riley v. County of Broome, 95 N.Y.2d at 464, 719 N.Y.S.2d 623, 742 N.E.2d 98 ), and is limited to vehicles performing " ‘construction, repair, maintenance or similar work’ " ( Guzman v. Bowen, 38 A.D.3d 837, 837, 833 N.Y.S.2d 548, quoting Riley v. County of Broome, 95 N.Y.2d at 464, 719 N.Y.S.2d 623, 742 N.E.2d 98 ; see Bliss v. State of New York, 95 N.Y.2d 911, 913, 719 N.Y.S.2d 631, 742 N.E.2d 106 ). Moreover, the exemption applies "only when such work is in fact being performed at the time of the accident" ( Hofmann v. Town of Ashford, 60 A.D.3d 1498, 1499, 876 N.Y.S.2d 588 ; see Perez v. City of Yonkers, 204 A.D.3d 711, 712, 163 N.Y.S.3d 859 ), although "[t]he statute does not require that a vehicle be located in a designated ‘work area’ in order to receive the protection" ( Riley v. County of Broome, 95 N.Y.2d at 468, 719 N.Y.S.2d 623, 742 N.E.2d 98 ).

B. "Work on a highway"

Here, under the circumstances of this case, we conclude that the defendant driver was not actually engaged in work on a highway at the time of the accident (see Perez v. City of Yonkers, 204 A.D.3d at 712, 163 N.Y.S.3d 859 ), because the act of transporting gravel to a highway worksite does not itself constitute construction, repair, maintenance, or similar work on a highway (see Guzman v. Bowen, 38 A.D.3d at 837–838, 833 N.Y.S.2d 548 ; see also Riley v. County of Broome, 95 N.Y.2d at 464, 719 N.Y.S.2d 623, 742 N.E.2d 98 ). 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 (see Deleon v. New York City Sanitation Dept., 25 N.Y.3d at 1104, 14 N.Y.S.3d 280, 35 N.E.3d 448 ; Matsch v. Chemung County Dept. of Pub. Works, 128 A.D.3d 1259, 1261, 9 N.Y.S.3d 724 ; New York State Elec. & Gas Corp. v. State of New York, 14 A.D.3d 675, 675–676, 789 N.Y.S.2d 255 ; Skolnick v. Town of Hempstead, 278 A.D.2d 481, 482, 718 N.Y.S.2d 81 ), or actively assessing the conditions of the road or searching for a reported hazard on the road (see Orellana v. Town of Carmel, 212 A.D.3d 834, 836, 182 N.Y.S.3d 210, affg 2020 N.Y. Slip Op. 35029[U], *2, 2020 WL 13303839 [Sup. Ct., Putnam County] ; Rascelles v. State of New York, 187 A.D.3d 953, 955, 130 N.Y.S.3d 739 ; Sullivan v. Town of Vestal, 301 A.D.2d 824, 824–825, 753 N.Y.S.2d 607 ).

C. "Actually engaged"

Indeed, the defendants do not contend that the mere transporting of construction materials on a public road will in every instance constitute being actually engaged in work on a highway. Rather, in advancing their claim, the defendants contend that the defendant driver's transport of materials fell within the scope of the statute because the defendant driver had been repairing a roadbed on the day of the collision and had not yet completed his work for the day. We disagree. The defendants’ position is inconsistent with the statute's use of the phrase "actually engaged" ( Vehicle and Traffic Law § 1103[b] ), as reflected in the plain language of the statute and its interpretation by the courts.

When an identical phrase is used in different parts of the same statute, " ‘it will be presumed to be used in the same sense throughout,’ absent any indication of a contrary intent" ( Matter of Mental Hygiene Legal Serv. v. Sullivan, 32 N.Y.3d 652, 659, 95 N.Y.S.3d 544, 119 N.E.3d 1225, quoting Catlin v. Sobol, 77 N.Y.2d 552, 559, 569 N.Y.S.2d 353, 571 N.E.2d 661 ; see Riley v. County of Broome, 95 N.Y.2d at 466, 719 N.Y.S.2d 623, 742 N.E.2d 98 ). Vehicle and Traffic Law § 1103(b), in addition to creating an exemption from the rules of the road for vehicles "actually engaged in work on a highway," also creates a narrower exemption from certain specific rules of the road for hazard vehicles "actually engaged in hazardous operation on or adjacent to a highway." The statute expressly provides that the exemption for hazard vehicles shall not apply to "persons and vehicles when traveling to or from such hazardous operation" ( id. ). The plain language of the statute therefore excludes the act of "traveling to or from" a hazardous operation from the definition of being "actually engaged" in that operation ( id. ).

Contrary to the defendants’ assertions, in interpreting the statutory language, "actually engaged" in the context of hazardous operations, courts have consistently held that driving a work vehicle to or from a worksite does not constitute "actually engaged in work on a highway" within the meaning of Vehicle and Traffic Law § 1103(b) (see Perez v. City of Yonkers, 204 A.D.3d at 712–713, 163 N.Y.S.3d 859 ; Zanghi v. Doerfler, 158 A.D.3d 1275, 1275, 70 N.Y.S.3d 716 ; Hofmann v. Town of Ashford, 60 A.D.3d at 1499, 876 N.Y.S.2d 588 ; Davis v. Incorporated Vil. of Babylon, N.Y., 13 A.D.3d 331, 332, 786 N.Y.S.2d 550 ). This is so even when, as here, the driver is...