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A STATEMENT ATTRIBUTED TO DEFENDANT IN A POLICE REPORT TO THE EFFECT THAT PLAINTIFF STOPPED SUDDENLY DID NOT RAISE A QUESTION OF FACT IN THIS REAR-END COLLISION CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff was entitled to summary judgment on liability in this rear-end collision case. The court noted that evidence the car in which plaintiff was a passenger stopped suddenly was not enough to raise a question of fact:

“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, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence” … . “[A]n assertion that the lead vehicle came to a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the operator of the rear vehicle” … .

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law by demonstrating that the vehicle owned by Elshaer and operated by Elnaggar struck Chowdhury’s vehicle in the rear, and in opposition, Elshaer and Elnaggar failed to raise a triable issue of fact. Contrary to Elshaer and Elnaggar’s contention, although a police report recounted Elnaggar’s statement that Chowdhury’s vehicle stopped suddenly prior to the rear-end collision, this statement was insufficient, in and of itself, to raise a triable issue of fact as to whether there was a nonnegligent explanation for the happening of the collision … . Chowdhury v Elshaer, 2024 NY Slip Op 06603, Second Dept 12-24-24

Practice Point: Here a statement attributed to defendant in a police report to the effect that plaintiff stopped suddenly was not sufficient to raise a question of fact about whether there was a nonnegligent explanation for the rear-end collision.

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THE GRAND JURY WAS PROPERLY INSTRUCTED ON THE DEFINITION OF “IMPAIRED” IN THE CONTEXT OF VEHICLE AND TRAFFIC LAW 1192 (4-A) (FELONY AGGRAVATED DRIVING WHILE INTOXICATED); THE FOURTH DEPARTMENT DISAGREED WITH THE DEFINITION OF “IMPAIRED” ADOPTED BY THE THIRD DEPARTMENT (FOURTH DEPT).

The Fourth Department, reversing County Court’s dismissal of the felony aggravated driving while intoxicated count, in a full-fledged opinion by Justice Curran, determined the grand jury was properly instructed on the definition of “impaired.” The Fourth Department noted its disagreement with the Third Department on this issue:

… [T]he People correctly instructed the grand jury that the term “impaired” in the context of Vehicle and Traffic Law § 1192 (4-a) is defined as the defendant’s consumption of a combination of drugs and alcohol to the point that it “has actually impaired, to any extent, the physical and mental abilities which [the defendant] is expected to possess in order to operate a vehicle as a reasonable and prudent driver” … .

In reaching that conclusion, we also note our respectful disagreement with the Third Department’s decision in People v Caden N. (189 AD3d 84 [3d Dept 2020], lv denied 36 NY3d 1050 [2021]), which defined the term “impaired” in the context of drug consumption in accordance with the heightened standard typically applicable in cases of “intoxication” by alcohol … . Ultimately, we conclude that the term “impaired” should be defined consistently across the Vehicle and Traffic Law—whether in the context of impairment by alcohol or in the context of impairment by drugs or a combination of drugs and alcohol. * * *

… [T]he Court of Appeals, in Cruz, clearly defined the term “impaired” to mean—in the context of alcohol consumption—that a defendant “has actually impaired, to any extent, the physical and mental abilities which [they are] expected to possess in order to operate a vehicle as a reasonable and prudent driver” (48 NY2d [419] at 427 …). In defining “impaired” that way, the Court sharply distinguished the term “impaired” from the separate term “intoxication,” as used in Vehicle and Traffic Law § 1192 (3), noting that the latter term denoted “a greater degree of impairment which is reached when [a] driver has voluntarily consumed alcohol to the extent that [they are] incapable of employing the physical and mental abilities which [they are] expected to possess in order to operate a vehicle as a reasonable and prudent driver” (Cruz, 48 NY2d [419] at 428). The Court concluded that the terms impaired and intoxicated are not interchangeable … . People v Dondorfer, 2024 NY Slip Op 06432, Fourth Dept 12-20-24

Practice Point: In the Fourth Department “impaired” in the context of felony aggravated driving while intoxicated (Vehicle and Traffic Law 1104 (4-a)” means impairment “to any extent [of] the physical and mental abilities which [the defendant] is expected to possess in order to operate a vehicle as a reasonable and prudent driver” … .

 

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DEFENDANT’S CROSSING THE FOG LINE ON THE RIGHT SIDE OF THE HIGHWAY THREE TIMES IN SECONDS CONSTITUTED PROBABLE CAUSE FOR THE TRAFFIC STOP (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined there was probable cause for the traffic stop which resulted in a DWI conviction. Defendant’s car crossed the fog line on the right side of the roadway three times within seconds:

When a driver swerves over the fog line repeatedly, in quick succession, they have failed to “drive[ ] as nearly as practicable entirely within a single lane” in violation of VTL § 1128 (a) (see e.g. Schoonmaker v New York State Dept. of Motor Vehicles, 33 NY3d 926, 928 [2019] [testimony that vehicle “ma(de) an erratic movement off the right side of the road, crossing the fog line and moving off the shoulder with the vehicle’s right front tire” provided substantial evidence that stop was lawful under VTL § 1128 (a)]; People v Tandle, 71 AD3d 1176, 1177, 1178 [2d Dept 2010]; People v Parris, 26 AD3d 393, 394 [2d Dept 2006]; cf. People v Davis, 58 AD3d 896, 898 [3d Dept 2009] [police officer’s testimony that driver had made “brief contacts with the fog line,” but not that driver was, for example, “weaving, driving erratically or even that he drove onto the shoulder” was insufficient to support traffic stop under VTL § 1128 (a)]). On these facts, the troopers’ observations, which were credited by the suppression court, established probable cause for the traffic stop. Therefore, the court properly denied the motion to suppress. People v Rufus, 2024 NY Slip Op 06384, CtApp 12-19-24

Practice Point: Here defendant’s crossing the fog line on the right side of the highway three times in seconds violated the Vehicle and Traffic Law and constituted probable cause for the traffic stop.

 

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DEFENDANT POLICE OFFICER WAS ENGAGED IN AN “EMERGENCY OPERATION” WITHIN THE MEANING OF VEHICLE AND TRAFFIC LAW 1104 WHEN HIS POLICE VAN STRUCK PLAINTIFF AS SHE STEPPED INTO THE ROAD FROM BETWEEN PARKED CARS; DEFENDANT DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS AND, THEREFORE, COULD NOT BE HELD LIABLE FOR PLAINTIFF’S INJURIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant police officer’s motion for summary judgment dismissing the complaint should have been granted. Plaintiff was struck by defendant’s police van when plaintiff stepped into the road from between two parked cars. Defendant police office was responding to an “assault in progress” when plaintiff was struck:

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 he was responding to a radio call about an “assault in progress” at the time of the accident … . The police officer therefore was privileged to drive in the wrong direction on the roadway … , and can be found liable only if he operated the vehicle in reckless disregard for the safety of others … .

Defendants demonstrated that the officer did not act with reckless disregard based on his testimony that he entered the eastbound lane after ascertaining that there was no traffic, turned on the siren and lights, and was unable to avoid striking plaintiff when she stepped out in front of the police van, despite hitting the brakes hard … . Yuet C. Chiu-Yu v Chin, 2024 NY Slip Op 06273, First Dept 12-12-24

Practice Point: Defendant police officer was responding to an “assault in progress” and testified he had activated his siren and lights and had checked for pedestrians prior to striking plaintiff as she stepped into the road from between parked cars. The officer testified he braked hard but could not avoid striking plaintiff. Defendants were entitled to summary judgment because the officer demonstrated he did not operate his vehicle in “reckless disregard” for the safety of others.

 

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PLAINTIFF’S MOTION TO AMEND THE NOTICE OF CLAIM TO ADD ALLEGATIONS WHICH MERELY AMPLIFIED THE ALLEGATIONS IN THE ORIGINAL NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motion to amend the notice of claim in this traffic accident case should have been granted to the extent the amendment merely amplified the allegations in the original notice. By contrast, the attempts to amend the notice by adding new theories of liability were properly denied. Plaintiff, a police officer, was a passenger in a police car driven by another officer, Lassen. Plaintiff sued Lassen for negligent operation of the police car and the city for negligent supervision and training:

… Supreme Court should have granted that branch of the plaintiff’s motion which was for leave to amend the complaint to add allegations relating to purported acts or omissions regarding Lassen’s operation of the police vehicle, including causes of action pursuant to General Municipal Law § 205-e asserted against the City defendants and predicated upon Lassen’s alleged violation of various provisions of the Vehicle and Traffic Law regulating the operation of motor vehicles … . These causes of action were based upon the same purported acts and omissions already set forth in the notice of claim … . Since Lassen’s alleged negligent and/or reckless operation of the police vehicle and the City’s concomitant negligence in failing to properly supervise and/or train Lassen were set forth in the notice of claim and the complaint, the new allegations effectively “amplif[ied]” the previously asserted allegations and did not constitute “new, distinct, and independent theories of liability” … . The fact that the proposed amended complaint alleged violations of statutory provisions not set forth in the notice of claim or original complaint, was not, standing alone, a basis to deny leave to amend … . Since the notice of claim “provided information . . . sufficient to alert the [defendants] to the potential [General Municipal Law § 205-e] cause[s] of action” predicated upon Lassen’s alleged failure to properly operate the police vehicle … , the court should not have denied that branch of the plaintiff’s motion which was for leave to amend the complaint to add those allegations on the ground that they were outside the existing notice of claim. Mitchell v Jimenez, 2024 NY Slip Op 06192, Second Dept 12-11-24

Practice Point: A motion to amend a notice of claim which seeks to amplify allegations in the original notice should be granted. A motion to amend a notice of claim which seeks to add new theories of liability is properly denied.

 

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HERE THE SUPERINTENDENT OF HIGHWAYS WAS NOT “ENGAGED IN HIGHWAY WORK” WHEN HE COLLIDED WITH PLAINTIFF; THEREFORE THE ORDINARY NEGLIGENCE STANDARD, NOT THE HIGHER “RECKLESS” STANDARD FOR HIGHWAY WORKERS IN THE VEHICLE AND TRAFFIC LAW, APPLIED TO THIS TRAFFIC ACCIDENT (CT APP).

The Court of Appeals, reversing the Appellate Division and awarding summary judgment to plaintiff, in a full-fledged opinion by Judge Cannataro, determined the defendant, Simone, the Superintendent of Highways for the Town of Carmel, was not engaged in highway work when he failed to look to his right before pulling out of an intersection and collided with plaintiff’s car. Simone had driven to a vantage point to see how much snow had fallen on the town’s roads and had ordered the highway department employees to salt the roads. He was on his way back to his office when the accident happened:

… [T]itle VII of the Vehicle and Traffic Law sets out a uniform set of traffic regulations, or “rules of the road,” which generally “apply to drivers of all vehicles owned or operated by the United States, this state, or any county, city, town, district, or any other political subdivision of the state” … . Vehicle and Traffic Law § 1103 (b), however, provides that those rules “shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway” … . Although such parties remain liable for “the consequences of their reckless disregard for the safety of others,” they bear no liability for ordinary negligence … . * * *

… [A]ccording to Simone’s own deposition testimony, the accident occurred after he had fully completed his assessment of roadway conditions at his bellwether location and mobilized his entire team to salt the town’s roads. At the time of the accident, Simone was merely using the road to return to work. Although he testified that he saw a slushy accumulation of snow to his left shortly before the collision occurred, he took no action in response to observing that condition. Indeed, he testified that as he pulled into the intersection where the collision occurred, there was nothing keeping his attention drawn to his left and he was no longer looking at the condition.

Because the uncontested evidence demonstrates that Simone was not actually engaged in work on a highway at the time the accident occurred, defendants are not entitled to the protections of [Vehicle and Traffic Law] section 1103 (b). Orellana v Town of Carmel, 2024 NY Slip Op 05131, CtApp 10-17-24

Practice Point: Here ordinary negligence rules applied to the Superintendent of Highways when he had an accident returning to his office after assessing how much snow had fallen. At the time of the accident he had already ordered his employees to salt the roads. He therefore was not “engaged in highway work” when he collided with plaintiff.

 

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THE VEHICLE WHICH STRUCK PLAINTIFF’S STOPPED VEHICLE FROM BEHIND FLED THE SCENE BUT WAS IDENTIFIED BY A LICENSE PLATE FOUND AT THE SCENE; DEFENDANT ACKNOWLEDGED OWNERSHIP OF THE VEHICLE BUT DENIED OPERATING IT AT THE TIME OF THE ACCIDENT; THAT ALLEGATION DID NOT OVERCOME THE PRESUMPTION OF PERMISSIVE USE UNDER THE VEHICLE AND TRAFFIC LAW; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this rear-end traffic-accident case, determined defendant’s allegation he was not driving his vehicle at the time of the accident did not overcome the presumption of permissive use under Vehicle and Traffic Law section 388(1). The vehicle which struck plaintiffs’ stopped vehicle fled the scene. But defendant admitted the license plate found at the scene was from his vehicle:

The plaintiff Manu Kanwar was a passenger in a vehicle owned and operated by the plaintiff Mahesh Kashyap when it was struck in the rear by another vehicle. Although the rear vehicle fled the scene, it allegedly was identified by its license plate, which had fallen off that vehicle at the accident scene. The plaintiffs commenced this action against the defendant to recover damages for personal injuries allegedly sustained in the accident. In his answer, the defendant, inter alia, admitted to owning a vehicle bearing the license plate number identified in the complaint, asserted an affirmative defense alleging that the plaintiffs were comparatively at fault, and asserted a counterclaim against Kashyap. * * *

The plaintiffs’ affidavits demonstrated, inter alia, that Kashyap’s vehicle was stopped for the traffic condition ahead when it was struck in the rear by the defendant’s vehicle and that the defendant, as the owner of the vehicle, was negligent (see Vehicle and Traffic Law §§ 388, 1129[a] …). In opposition, the defendant failed to raise a triable issue of fact. In his affidavit in opposition to the plaintiffs’ motion, the defendant merely averred that he was not operating his vehicle at the time of the accident. However, this was insufficient to overcome the statutory presumption of permissive use under Vehicle and Traffic Law § 388(1)… , and it was also insufficient to raise a triable issue of fact as to whether his vehicle was not involved in the accident … . Kashyap v Dasilva, 2024 NY Slip Op 04308, Second Dept 8-28-24

Practice Point: Here the defendant acknowledged ownership of the vehicle which struck plaintiff’s stopped vehicle from behind and left the scene, but denied he was operating it at the time of the accident. That denial did not overcome the presumption that whoever was driving the vehicle was doing so with the owner’s permission (Vehicle and Traffic Law 388). Plaintiff was entitled to summary judgment.

 

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PLAINTIFF WAS STOPPED WHEN PLAINTIFF WAS REAR-ENDED BY DEFENDANT; BECAUSE DEFENDANT DID NOT OFFER A NONNEGLIGENT EXPLANATION, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY; HOWEVER PLAINTIFF MAY HAVE BEEN STOPPED ON AN ENTRANCE RAMP; THEREFORE DEFENDANT’S COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE PROPERLY SURVIVED DISMSSAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on liability in the rear-end-collision traffic accident case. However, because plaintiff may have been parked on an entrance ramp to an expressway, the comparative negligence affirmative defense properly survived dismissal:

A rear-end collision with a stopped 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 … . Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability through the submission of, among other things, her affidavit, which established that the plaintiff’s vehicle was parked on the side of a service road to the Major Deegan Expressway in the Bronx (hereinafter the expressway), with the hazard lights activated, when it was struck in the rear by the defendants’ vehicle … . In opposition to the plaintiff’s prima facie showing, the defendants failed to rebut the inference of negligence with admissible evidence … . …

The plaintiff also established her prima facie entitlement to judgment as a matter of law dismissing the defendants’ affirmative defenses alleging comparative negligence by demonstrating that she was not at fault in the happening of the accident … . In opposition to the plaintiff’s prima face showing, however, the defendants raised triable issues of fact as to whether the plaintiff was comparatively at fault in the happening of the accident, including whether the plaintiff’s vehicle was stopped on the entrance ramp to the expressway (see Vehicle and Traffic Law § 1202[a][1][j] …). Ramirez v Greiner, 2024 NY Slip Op 04154, Second Dept 8-7-24

Practice Point: Unless defendant offers a nonnegligent explanation for a rear-end collision with plaintiff’s stopped vehicle, plaintiff is entitled to summary judgment on liability.​

Practice Point: However, summary judgment on liability in favor of plaintiff does not preclude a valid comparative-fault affirmative defense.

 

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A COUNTY RECYCLING TRUCK IS NOT ENGAGED IN ROAD WORK AND THEREFORE IS NOT EXEMPT FROM THE RULES OF THE ROAD UNDER THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT).

The Fourth Department, reversing County Court in this traffic accident case, determined a county recycling truck was not engaged in the type of road work which is exempted from the rules of the road under the Vehicle and Traffic Law. The related affirmative defense should have been dismissed:

Vehicle and Traffic Law § 1103 (b) provides that the rules of the road do not apply to “persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway” … . “[T]he law was intended to exempt from the rules of the road all teams and vehicles that ‘build highways, repair or maintain them, paint the pavement markings, remove the snow, sand the pavement and do similar work’ . . . Thus, the exemption turns on the nature of the work being performed (construction, repair, maintenance or similar work)—not on the nature of the vehicle performing the work” … .

Inasmuch as municipal refuse collection does not involve building, repairing, or maintaining highways, painting pavement markings, removing snow, sanding the pavement, or doing other similar work (see id.) and is “a task which one would anticipate could be accomplished while obeying the rules of the road”…, we conclude that Vehicle and Traffic Law § 1103 does not apply to the facts presented here … . In reaching that conclusion, we note that the 2016 amendment to Vehicle and Traffic Law § 117-a (L 2016, ch 293, § 1)—which broadened the definition of “hazard vehicle” to include sani-vans and waste collection vehicles—did not broaden the scope of work that would constitute “engag[ing] in work on a highway” … .

Vehicle and Traffic Law § 1103 (b) further provides that section 1202 (a)—which regulates stopping, standing, and parking—does not apply to “hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway” … . That provision, however, does not shield defendants from the allegations of negligence raised by plaintiff, i.e., violations of the right-of-way provisions of Article 26 of the Vehicle and Traffic Law, including, inter alia, sections 1140, 1142 (a), and 1146 (b). Rouse v City of Syracuse Dept. of Pub. Works, 2024 NY Slip Op 03938, Fourth Dept 7-26-24

Practice Point: A county recycling truck is not engaged in road work and therefore is not exempt from the rules of the road under the Vehicle and Traffic Law.

 

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DEFENDANT FARM’S EMPLOYEE WAS DRIVING FARM EQUIPMENT AT NIGHT WITHOUT LIGHTS WHEN PLAINTIFF COLLIDED WITH IT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT UNDER A NEGLIGENCE-PER-SE THEORY AND UNDER RESPONDEAT SUPERIOR (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment in this traffic accident case. Plaintiff collided with a manure spreader with no lights which was being towed by a tractor at night (a violation of the Vehicle and Traffic Law). In addition, the employer of the driver was deemed liable under respondeat superior:

“[A] defendant’s unexcused violation of the Vehicle and Traffic Law constitutes negligence per se” … and here, plaintiff met his initial burden on the motion by submitting evidence that the manure spreader was being operated on a public roadway, more than one-half hour after sunset, without “at least two lighted lamps on the rear, one on each side” in violation of Vehicle and Traffic Law § 375 (2) (a) (3), and without “signaling devices and reflectors” in violation of section 376 (a), which constitutes negligence per se … . …

“The general rule is that an employee acts within the scope of his [or her] employment when [the employee] is acting in furtherance of the duties owed to the employer and where the employer is or could be exercising some degree of control, directly or indirectly, over the employee’s activities” … . Here, plaintiff established that Sanchez-Rodriguez [the tractor driver] was “acting within the scope of his employment” at the time of the accident … . Durkee v Sanchez-Rodriguez, 2024 NY Slip Op 04002, Fourth Dept 7-26-24

Practice Point: Driving farm equipment on a public road at night without lights constitutes negligence per se.

 

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