Issue of Fact Precludes “Reckless Disregard” Standard of Care in Negligence Action
In Martinez v. City of Buffalo, 2017 WL 1527026 (4th Dept. 2017), the plaintiff commenced an action for injuries he allegedly sustained after being struck by a snowplow. The operator of the snowplow, Thomas Alan Gill, was employed by the City of Buffalo. While attempting to make a U-turn with the snowplow, defendant Gill proceeded into the plaintiff’s lane of travel and collided with plaintiff’s vehicle. The trial court granted plaintiff’s motion with respect to serious injury, denied plaintiff’s motion on the issue of negligence but determined, sua sponte, that the “reckless disregard for the safety of others” standard contained within New York’s Vehicle and Traffic Law §1103(b) applied to the operation of the snowplow as opposed to ordinary negligence.
The Fourth Department opined that a trial court is empowered to search the record and may even grant summary judgment to a non-moving party. The Court, however, held that on these facts summary judgment as to the applicability of the “reckless disregard for the safety of others” standard was precluded as issues of fact existed as to whether the snowplow was a vehicle “actually engaged in work on a highway.” Due to conflicting testimony of the parties as to whether defendant Gill was engaged in any form of snow or ice removal, the Court concluded it could not be determined, as a matter of law, that the snowplow was “actually engaged in work on a highway” at the time of the accident. Therefore, the Appellate Division vacated the provision of the trial court’s order which determined the “reckless disregard” standard applied.
Derivative Cause of Action Dismissed Against Village as Claimant Failed to Allege it in the Notice of Claim
In Snow v Povoski, et al., 2017 WL 1527099 (4th Dept. 2017), the infant plaintiff alleged to have sustained injuries after being struck by a motor vehicle near the area where excavation work was being performed by defendant Village of Addison. After watching the excavation work, the infant was struck as he attempted to cross the street after emerging from behind a pile of dirt placed partially in the street. The Village moved for summary judgment seeking dismissal of the complaint but it was denied by the trial court.
The Fourth Department noted that the Village demonstrated its entitlement to summary judgment dismissing the plaintiff’s second cause of action due to the fact the derivative claim was not pled in the notice of claim. A notice of claim must set forth the nature of the claim as well as the alleged damages and injuries. The Fourth Department held that a claimant “need not state a precise cause of action in haec verba in a notice of claim, but a claimant may not raise in the complaint causes of action or legal theories that were not directly or indirectly mentioned in the notice of claim and that change the nature of the earlier claim or assert a new one.” Therefore, the plaintiff was foreclosed from asserting a derivative claim against the Village.
Prepared by Nicholas Hriczko, Esq.