You are here: / Vehicle and Traffic Law
, ,

RECKLESS DISREGARD STANDARD APPLIED TO DRIVER OF TOWN SNOWPLOW AND THE DRIVER DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the town’s motion for summary judgment in this snowplow-car accident case should have been granted. Even though the plow was up at the time of the accident, the Vehicle and Traffic Law “reckless disregard” standard applied, and the snowplow driver’s (Hanssen’s) actions did not amount to “reckless disregard:”

… [D]efendants established as a matter of law that the reckless disregard standard of care, and not negligence, is applicable to this case pursuant to Vehicle and Traffic Law § 1103 (b), and plaintiffs failed to raise a triable issue of fact. Defendants submitted the deposition testimony of Hanssen, who testified that he was plowing snow and salting the roads on his assigned route at the time of the accident, and section 1103 (b) applies where, as here, a snowplow truck is “actually engaged in work on a highway” … . Contrary to plaintiffs’ contention, although defendants also submitted the deposition testimony of plaintiffs that the plow blade was up at the time of the accident, that is not enough to raise an issue of fact inasmuch as it was uncontroverted that Hanssen was salting the road and was “working his run’ or beat’ at the time of the accident” … . …

Hanssen testified at his deposition that he slowed down as he approached the stop sign and was moving at a speed of five miles per hour just prior to the intersection. He looked both ways for traffic, but did not see plaintiffs’ approaching vehicle. That evidence, which was not controverted by the deposition testimony of plaintiffs, established that Hanssen did not act with reckless disregard for the safety of others … . Harris v Hanssen, 2018 NY Slip Op 03257, Fourth Dept 5-4-18

​NEGLIGENCE (TRAFFIC ACCIDENTS, RECKLESS DISREGARD STANDARD APPLIED TO DRIVER OF TOWN SNOWPLOW AND THE DRIVER DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/MUNICIPAL LAW (TRAFFIC ACCIDENTS, RECKLESS DISREGARD STANDARD APPLIED TO DRIVER OF TOWN SNOWPLOW AND THE DRIVER DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW RECKLESS DISREGARD STANDARD APPLIED TO DRIVER OF TOWN SNOWPLOW AND THE DRIVER DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/TRAFFIC ACCIDENTS (MUNICIPAL LAW, RECKLESS DISREGARD STANDARD APPLIED TO DRIVER OF TOWN SNOWPLOW AND THE DRIVER DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/RECKLESS DISREGARD (TRAFFIC ACCIDENTS, MUNICIPAL LAW, RECKLESS DISREGARD STANDARD APPLIED TO DRIVER OF TOWN SNOWPLOW AND THE DRIVER DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/SNOWPLOWS (TRAFFIC ACCIDENTS, RECKLESS DISREGARD STANDARD APPLIED TO DRIVER OF TOWN SNOWPLOW AND THE DRIVER DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

,

EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendants’ motion for summary judgment, based upon the emergency doctrine, should not have been granted in this “sudden stop” bus-passenger injury case. The defendants alleged that the bus driver reacted to an emergency when a car in front of the bus stopped suddenly. However, the emergency doctrine does not usually apply in this situation:

Defendants contend that the driver of the bus on which plaintiff was a passenger was not negligent in braking to a sudden, hard stop that allegedly caused plaintiff to be injured, but reacted reasonably to the sudden stop of a car in front of the bus. However, the emergency doctrine is typically not available to the rear driver in a rear-end collision, who is responsible for maintaining a safe distance … . The bus driver’s affidavit demonstrates that he was confronted with a “common traffic occurrence” when the vehicle in front of the bus stopped short … . A factfinder could reasonably conclude that the bus driver was negligent in failing to maintain a safe distance between the bus and the car in front of it (see Vehicle and Traffic Law § 1129[a]) and that his own conduct caused or contributed to the emergency situation … . Contrary to defendants’ contention, a violation of Vehicle and Traffic Law § 1129(a) may be found even where there was no collision … . Vanderhall v MTA Bus Co., 2018 NY Slip Op 02720, First Dept 4-19-18

​NEGLIGENCE (BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/BUSES (BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/TRAFFIC ACCIDENTS (BUS, SUDDEN STOP, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/EMERGENCY DOCTRINE (TRAFFIC ACCIDENTS, BUSES, SUDDEN STOP, BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW (BUSES, SUDDEN STOP, (BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT)}/REAR-END COLLISIONS BUSES, SUDDEN STOP, (BUS PASSENGER INJURY, EMERGENCY DOCTRINE DOES NOT USUALLY APPLY IN REAR-END COLLISION CASES, VEHICLE AND TRAFFIC LAW RE FOLLOWING TOO CLOSELY CAN BE VIOLATED EVEN WHEN THERE IS NO COLLISION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SUDDEN-STOP BUS-PASSENGER INJURY CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

, ,

APPLYING THE CLEAR AND CONVINCING EVIDENTIARY STANDARD, THE DEPARTMENT OF MOTOR VEHICLES’ (DMV’S) SUSPENSION OF PETITIONER BUS DRIVER’S LICENSE BASED UPON STRIKING A PEDESTRIAN WAS NOT SUPPORTED BY EVIDENCE OF THE EXTENT OF THE INJURY OR ANY CONNECTION BETWEEN THE INJURY AND THE PEDESTRIAN’S DEATH A MONTH LATER, DETERMINATION ANNULLED AND LICENSE REINSTATED (FIRST DEPT).

The First Department, annulling the determination of the Department of Motor Vehicles (DMV), over a two-justice dissenting opinion, determined the record did not support the suspension of petitioner-bus-driver’s license for a violation of Vehicle and Traffic Law 1146. The court noted that the standard of proof in the DMV hearing is “clear and convincing” and the standard of proof in the instant Article 78 proceeding is “substantial evidence.” Effectively, therefore, the “clear and convincing” standard applies to the Article 78. Here, on a dark and rainy night, an 88-year-old pedestrian apparently came into contact with the bus in the crosswalk when the bus was turning. The man died a month later. In the opinion of the majority, the hearing evidence did not demonstrate how seriously the man was injured by the bus, or a connection between any injury and the man’s death a month later:

Here, DMV was required to establish that petitioner violated Vehicle and Traffic Law § 1146(c)(1), which imposes liability on “[a] driver of a motor vehicle who causes serious physical injury as defined in article ten of the penal law to a pedestrian or bicyclist while failing to exercise due care.” The referenced definition of “serious physical injury” includes “physical injury . . . which causes death,” … which is presumably the basis for the charge against petitioner since he was not issued a summons until after the pedestrian died in the hospital. Thus, DMV was required to present clear and convincing evidence of both failure to exercise care and that such failure led to the pedestrian’s demise. * * *

To be sure, one could speculate, as does the dissent, that the pedestrian suffered a “serious physical injury.” But to engage in speculation would be to ignore the underlying standard of clear and convincing evidence, which even the dissent agrees applied in the administrative proceeding and is relevant to our review. “Clear and convincing evidence is evidence that satisfies the factfinder that it is highly probable that what is claimed actually happened . . . and it is evidence that is neither equivocal nor open to opposing presumptions”… . Given that standard, and the remarkable lack of compelling evidence before us, we would be abdicating our role were we simply to defer to the conclusions drawn by the Administrative Law Judge, and raising a serious question as to the very purpose of having any appellate review in this matter. Matter of Seon v New York State Dept. of Motor Vehs., 2018 NY Slip Op 02240, First Dept 3-29-18

 

, ,

QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OR NORMAL NEGLIGENCE STANDARD APPLIES IN THIS POLICE CAR TRAFFIC ACCIDENT CASE (FOURTH DEPT).

The Fourth Department determined there was a question of fact whether the defendant police officer involved a traffic accident with plaintiff was proceeding through a red light or a green light on his way to an (another) accident scene. If the light was red, the reckless disregard standard would apply to the officer’s driving. If the light was green, the normal negligence standard would apply:

We reject defendants’ contention that the color of the traffic light is not a material issue of fact precluding summary judgment. If the factfinder determines that defendant officer was engaged in the exempt conduct of proceeding past a steady red signal (see Vehicle and Traffic Law § 1104 [b] [2]), then the reckless disregard standard of care would apply under the circumstances presented herein … . If, however, the factfinder credits defendant officer’s account that he was proceeding through a green light, then the alleged injury-causing conduct by defendant officer would be governed by principles of ordinary negligence… . Inasmuch as the resolution of that factual issue will determine the standard of care by which the factfinder must evaluate defendant officer’s conduct … , we conclude that the court erred in determining on the submissions before it that the reckless disregard standard applies as a matter of law. Furthermore, the determination of the color of the traffic light at the time of the collision, and each driver’s compliance with the standard of care that will apply upon resolution of that material factual issue, depends on the memory and credibility of witnesses … . Inasmuch as a court’s role in deciding a motion for summary judgment is ” issue-finding, rather than issue-determination’ ” … , we reject defendants’ contention that they are entitled to summary judgment at this juncture … . Oddo v City of Buffalo, 2018 NY Slip Op 02041, Fourth Dept 3-23-18

NEGLIGENCE (MUNICIPAL LAW, POLICE OFFICERS, TRAFFIC ACCIDENTS, QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OR NORMAL NEGLIGENCE STANDARD APPLIES IN THIS POLICE CAR TRAFFIC ACCIDENT CASE (FOURTH DEPT))/MUNICIPAL LAW (NEGLIGENCE, TRAFFIC ACCIDENTS, POLICE OFFICERS, POLICE OFFICERS, TRAFFIC ACCIDENTS, QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OR NORMAL NEGLIGENCE STANDARD APPLIES IN THIS POLICE CAR TRAFFIC ACCIDENT CASE (FOURTH DEPT))/POLICE OFFICERS (TRAFFIC ACCIDENTS,  QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OR NORMAL NEGLIGENCE STANDARD APPLIES IN THIS POLICE CAR TRAFFIC ACCIDENT CASE (FOURTH DEPT))/TRAFFIC ACCIDENTS (POLICE OFFICERS, QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OR NORMAL NEGLIGENCE STANDARD APPLIES IN THIS POLICE CAR TRAFFIC ACCIDENT CASE (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (POLICE OFFICERS, TRAFFIC ACCIDENTS, QUESTION OF FACT WHETHER THE RECKLESS DISREGARD OR NORMAL NEGLIGENCE STANDARD APPLIES IN THIS POLICE CAR TRAFFIC ACCIDENT CASE (FOURTH DEPT))

,

DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE PLAINTIFF OR PLAINTIFF’S CO-WORKER WHO INJURED PLAINTIFF, THE FACT THAT DEFENDANT GENERAL CONTRACTOR SUPPLIED THE EQUIPMENT WHICH INJURED PLAINTIFF DID NOT GIVE RISE TO LIABILITY ON THE GENERAL CONTRACTOR’S PART (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, granted the defendant general contractor’s motion for summary judgment in this common law negligence and Labor Law 200 action. The Fourth Department further found that the plaintiff’s Labor Law 241(6) and Vehicle and Traffic Law 388 causes of action were properly dismissed. Plaintiff worked for the property owner, GTO, and did not work for defendant general contractor. Plaintiff was injured by a GTO  co-worker who was using a piece of equipment owned by the defendant (a skid steer used in landscaping work). The defendant did not exercise supervisory control over the skid steer operator and demonstrated entrusting the skid steer to the co-worker did not constitute negligent entrustment of a dangerous instrument. The plaintiff, a landscaper, was not engaged in construction work within the meaning of Labor Law 241(6) and the skid steer was not operated on a public highway within the meaning of the Vehicle and Traffic Law:

Here, the evidence submitted by defendant established that plaintiff and the coworker were both employed by GTO, not by defendant. They were performing landscaping work in the parking lot of the complex, and were not involved in the construction work that was being performed by defendant. Defendant did not give any instructions to plaintiff and the coworker about what work to perform or how to perform their work, and no one from GTO was required to use the skid steer to perform his or her duties. The coworker chose to use the skid steer to move topsoil, and defendant permitted him to do so for such use. Although we are mindful that there might be circumstances in which a party may be said to exercise control over the manner of work based on the provision of the equipment to be used, we conclude that defendant did not exercise such control in this case … . The fact that defendant allowed a GTO employee to use its equipment to perform work on the grounds did not give defendant supervisory control over the manner in which the landscaping work was being performed by the GTO employees. To the contrary, the record establishes that defendant exercised no supervisory control over the landscaping work that was being performed by plaintiff and the coworker and, thus, defendant cannot be held liable for any injuries that were caused by the manner in which that work was being performed. Calvert v Duggan & Duggan Gen. Contr., Inc., 2018 NY Slip Op 01841, Fourth Dept 3-16-18

LABOR LAW-CONSTRUCTION LAW (DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE PLAINTIFF OR PLAINTIFF’S CO-WORKER WHO INJURED PLAINTIFF, THE FACT THAT DEFENDANT GENERAL CONTRACTOR SUPPLIED THE EQUIPMENT WHICH INJURED PLAINTIFF DID NOT GIVE RISE TO LIABILITY ON THE GENERAL CONTRACTOR’S PART (FOURTH DEPT))/GENERAL CONTRACTOR (LABOR LAW-CONSTRUCTION LAW, (DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE PLAINTIFF OR PLAINTIFF’S CO-WORKER WHO INJURED PLAINTIFF, THE FACT THAT DEFENDANT GENERAL CONTRACTOR SUPPLIED THE EQUIPMENT WHICH INJURED PLAINTIFF DID NOT GIVE RISE TO LIABILITY ON THE GENERAL CONTRACTOR’S PART (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (LABOR LAW-CONSTRUCTION LAW, DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE PLAINTIFF OR PLAINTIFF’S CO-WORKER WHO INJURED PLAINTIFF, THE FACT THAT DEFENDANT GENERAL CONTRACTOR SUPPLIED THE EQUIPMENT WHICH INJURED PLAINTIFF DID NOT GIVE RISE TO LIABILITY ON THE GENERAL CONTRACTOR’S PART (FOURTH DEPT))

, ,

VEHICLE AND TRAFFIC LAW 370 DID NOT EXEMPT COUNTY FROM PROVIDING UNINSURED MOTORIST COVERAGE FOR PERSONS DRIVING COUNTY CARS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the county was obligated to provide uninsured motorist coverage to respondent, who was injured by an uninsured driver while driving a county car. The county argued it was exempt from providing uninsured motorist coverage pursuant to Vehicle and Traffic Law 370:

​

“[T]he Legislature has specifically declared its grave concern that motorists who use the public highways be financially responsible to ensure that innocent victims of motor vehicle accidents be recompensed for their injuries and losses'” … . Thus, although the Legislature authorized municipalities to be self-insured pursuant to the exception in Vehicle and Traffic Law § 370(1), it did not exculpate them from the responsibility of providing uninsured motorist protection … . Matter of County of Suffolk v Johnson, 2018 NY Slip Op 00552, Second Dept 1-31-18

MUNICIPAL LAW (INSURANCE LAW, VEHICLE AND TRAFFIC LAW 370 DID NOT EXEMPT COUNTY FROM PROVIDING UNINSURED MOTORIST COVERAGE FOR PERSONS DRIVING COUNTY CARS (SECOND DEPT))/INSURANCE LAW (MUNICIPAL LAW, VEHICLE AND TRAFFIC LAW 370 DID NOT EXEMPT COUNTY FROM PROVIDING UNINSURED MOTORIST COVERAGE FOR PERSONS DRIVING COUNTY CARS (SECOND DEPT))/UNINSURED MOTORIST COVERAGE (MUNICIPAL LAW, VEHICLE AND TRAFFIC LAW 370 DID NOT EXEMPT COUNTY FROM PROVIDING UNINSURED MOTORIST COVERAGE FOR PERSONS DRIVING COUNTY CARS (SECOND DEPT))/VEHICLE AND TRAFFIC LAW (MUNICIPAL LAW, INSURANCE LAW,  VEHICLE AND TRAFFIC LAW 370 DID NOT EXEMPT COUNTY FROM PROVIDING UNINSURED MOTORIST COVERAGE FOR PERSONS DRIVING COUNTY CARS (SECOND DEPT))

,

PLAINTIFF PEDESTRIAN ENTITLED TO SUMMARY JUDGMENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE, EVEN IF THE CROSSING LIGHT CHANGED WHILE PLAINTIFF WAS CROSSING HE WAS ENTITLED TO PROCEED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this bus-pedestrian accident case should have been granted. The court noted that even if the cross signal changed while plaintiff was crossing, he was permitted to proceed once he started crossing:

​

Plaintiff established his entitlement to partial summary judgment through his testimony that he was crossing the intersection within the crosswalk and with the light in his favor, when defendants’ bus struck him while making a left turn … .. The testimony of defendant bus driver does not contradict plaintiff’s testimony that he was in the crosswalk, since the driver did not see plaintiff until the moment of impact. The driver’s observation of a white crossing signal before commencing his turn also does not contradict plaintiff’s testimony that he started crossing with the light in his favor. …

​

The court should not have considered the videotape footage defendants provided as defendants neither authenticated it nor even showed that it had any relevance to the accident at issue … . It indicates, at most, that it was raining. Even if it showed, as defendants claim, that the pedestrian cross signal changed as plaintiff was crossing, that would not help defendants, as plaintiff was permitted to proceed across the avenue, once he started crossing with the signal in his favor (see Vehicle and Traffic Law § 1112 [b], [c]…). Torres v Werner Bus Lines, Inc., 2018 NY Slip Op 00483, First Dept 1-25-18

NEGLIGENCE (BUS-PEDESTRIAN ACCIDENT, PLAINTIFF PEDESTRIAN ENTITLED TO SUMMARY JUDGMENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE, EVEN IF THE CROSSING LIGHT CHANGED WHILE PLAINTIFF WAS CROSSING HE WAS ENTITLED TO PROCEED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW  (BUS-PEDESTRIAN ACCIDENT, PLAINTIFF PEDESTRIAN ENTITLED TO SUMMARY JUDGMENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE, EVEN IF THE CROSSING LIGHT CHANGED WHILE PLAINTIFF WAS CROSSING HE WAS ENTITLED TO PROCEED (FIRST DEPT))/TRAFFIC ACCIDENTS  (BUS-PEDESTRIAN ACCIDENT, PLAINTIFF PEDESTRIAN ENTITLED TO SUMMARY JUDGMENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE, EVEN IF THE CROSSING LIGHT CHANGED WHILE PLAINTIFF WAS CROSSING HE WAS ENTITLED TO PROCEED (FIRST DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, PLAINTIFF PEDESTRIAN ENTITLED TO SUMMARY JUDGMENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE, EVEN IF THE CROSSING LIGHT CHANGED WHILE PLAINTIFF WAS CROSSING HE WAS ENTITLED TO PROCEED (FIRST DEPT))

, ,

ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the complaint against the company which owned a truck which struck plaintiff should not have been dismissed. The driver of the truck, an employee, was using it for personal purposes (driving bar to bar) at the time of the accident and was not acting within the scope of his employment. The company was not liable under the doctrine of respondeat superior. However, there was a question of fact whether the driver was using the truck with the company’s permission at the time of the accident, rendering the company liable pursuant to the Vehicle and Traffic Law:

​

“It is well settled that Vehicle and Traffic Law § 388 (1) creates a strong presumption that the driver of a vehicle is operating it with the owner’s permission and consent, express or implied, and that presumption continues until rebutted by substantial evidence to the contrary” … . Even in the case of substantial evidence to the contrary, the issue of implied permission is ordinarily a question of fact for a jury … . The Court of Appeals … went so far as to state that “uncontradicted statements of both the owner and the driver that the driver was operating the vehicle without the owner’s permission will not necessarily warrant a court in awarding summary judgment for the owner” … . Baker v Lisconish, 2017 NY Slip Op 08943, Fourth Dept 12-22-17

 

NEGLIGENCE (TRAFFIC ACCIDENT, EMPLOYMENT LAW, VEHICLE AND TRAFFIC LAW, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/EMPLOYMENT LAW (TRAFFIC ACCIDENT, RESPONDEAT SUPERIOR, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/VEHICLE AND TRAFFIC LAW (TRAFFIC ACCIDENTS, PERMISSIVE USE, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/RESPONDEAT SUPERIOR (TRAFFIC ACCIDENTS,  ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/TRAFFIC ACCIDENTS (RESPONDEAT SUPERIOR, VEHICLE AND TRAFFIC LAW,  ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))/PERMISSIVE USE (TRAFFIC ACCIDENTS, VEHICLE AND TRAFFIC LAW, ALTHOUGH THE EMPLOYEE OF THE OWNER OF THE TRUCK WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A QUESTION OF FACT WHETHER THE EMPLOYEE WAS USING THE TRUCK WITH THE COMPANY’S PERMISSION, RENDERING THE COMPANY LIABLE PURSUANT TO VEHICLE AND TRAFFIC LAW 388 (FOURTH DEPT))

,

DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT).

The Third Department determined the state trooper properly stopped the defendant, which led to his arrest for DWI, because the defendant had his high beams on as he approached the trooper:

​

Petitioner contends that the revocation of his driver’s license must be reversed because the trooper’s testimony at the revocation hearing was insufficient to establish that he violated Vehicle and Traffic Law § 375 (3), thereby rendering the traffic stop unlawful. We disagree. A police officer may lawfully execute a traffic stop of a vehicle when he or she has probable cause to believe that the driver of the vehicle has committed a violation of the Vehicle and Traffic Law … . Pursuant to Vehicle and Traffic Law § 375 (3), a driver shall operate his or her headlights in such a manner “that dazzling light does not interfere with the driver of [an] approaching vehicle.” To establish such a violation, it must be shown that the operator of the motor vehicle used his or her high beams within 500 feet of an approaching vehicle and that the use of such high beams interfered with the vision of that driver by “hampering or hindering [his or her] vision” … .

At the hearing, the trooper testified that he was traveling westbound … , when he observed petitioner’s vehicle approximately 500 feet away in the eastbound lane of travel with his high beams activated. The trooper testified that petitioner’s high beams caused “a glare to [his] vision” and affected his driving insofar as he had to “adjust [his] eyes.” In our view, such testimony sufficiently established that he had probable cause to believe that petitioner had committed a violation of the Vehicle and Traffic Law … and, together with the negative inference that the Appeals Board permissibly drew from petitioner’s failure to testify at the hearing … , we conclude that the determination was supported by substantial evidence … . Matter of Barr v New York State Dept. of Motor Vehicles, 2017 NY Slip Op 07664, Third Dept 11-2-17

 

CRIMINAL LAW (DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))/VEHICLE AND TRAFFIC LAW (HIGH BEAMS, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))/TRAFFIC STOPS (DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT)/HIGH BEAMS (VEHICLE AND TRAFFIC LAW, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))/REVOCATION (DRIVER’S LICENSE, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))/DRIVER’S LICENSE (REVOCATION, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))REFUSAL (CHEMICAL TEST, DWI, DRIVER’S LICENSE REVOCATION, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))/DRIVING WHILE INTOXICATED (TRAFFIC STOP, REVOCATION HEARING, DRIVING WITH HIGH BEAMS ON JUSTIFIED THE VEHICLE STOP WHICH LED TO A DWI ARREST (THIRD DEPT))

, ,

POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT). 

The First Department, reversing Supreme Court, determined the action against a police officer whose police car struck plaintiff should have been dismissed. Plaintiff was standing in the road at the double yellow lines when the officer, responding to an emergency call, moved over the double yellow line:

​

Defendants demonstrated that defendant police officer was engaged in an “emergency operation” within the meaning of Vehicle and Traffic Law § 1104, by submitting evidence that the officer was responding to a radio call about a “man with a gun” when her police vehicle struck plaintiff … . Defendants’ evidence also showed that the officer was engaged in conduct privileged under the statute at the time of the accident, since her vehicle straddled and then crossed the double yellow lines, in disregard of regulations “governing directions of movement” (VTL § 1104[b][4]). Accordingly, defendants demonstrated that the officer’s conduct is to be assessed under the statute’s “reckless disregard” standard… .

Defendants further demonstrated that the officer did not operate the police vehicle in reckless disregard for the safety of others … . The officer testified that traffic warranted moving her vehicle left and operating it on the double yellow lines to avoid the stopped vehicles to her right and ahead of her. The officer had no duty to engage her sirens or lights, as she was operating a police vehicle, and her failure to do so was not evidence of recklessness …. Moreover, the officer testified that she attempted to avoid plaintiff, who was standing on the double yellow lines, by swerving behind her, an assertion that plaintiff supported with her own testimony … .

​

In opposition, plaintiff failed to present evidence showing that there was no emergency, and failed to raise an issue of fact as to whether the officer acted in reckless disregard for the safety of others. Green v Zarella, 2017 NY Slip Op 06599, First Dept 9-26-1

 

NEGLIGENCE (POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/MUNICIPAL LAW (POLICE OFFICERS, POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW (POLICE OFFICERS, RECKLESS DISREGARD, POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/RECKLESS DISREGARD (VEHICLE AND TRAFFIC LAW, POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/TRAFFIC ACCIDENTS (PEDESTRIANS, (POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy