Curella v. Town of Amherst

Appellate Division of the Supreme Court of New York

Curella v. Town of Amherst

77 A.D.3d 1301, 909 N.Y.S.2d 265

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 1, 2010

StatusPublished

Cited by5 cases

This text of 77 A.D.3d 1301 (Curella v. Town of Amherst) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Curella v. Town of Amherst, 77 A.D.3d 1301, 909 N.Y.S.2d 265 (N.Y. Ct. App. 2010).

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Opinion

Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered September 23, 2009 in a personal injury action. The order, insofar as appealed from, denied in part defendants’ motion for summary judgment.

It is hereby ordered that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted in its entirety and the complaint is dismissed.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Douglas J. Curella when the truck he was operating collided with a snowplow owned by defendant Town of Amherst “and/or” defendant Highway Department and operated by defendant David M. Petrie. Defendants moved for summary judgment dismissing the complaint, and Supreme Court granted only that part of the motion with respect to the 90/180-day category of serious injury within the meaning of Insurance Law § 5102 (d). We conclude that the court should have granted the motion in its entirety, and we therefore reverse the order insofar as appealed from. Defendants met their initial burden of establishing that the snowplow was a hazard vehicle engaged in road work pursuant to Vehicle and Traffic Law § 1103 (b) and thus that it was exempt from the rules of the road except to the extent that its [1302]*1302operation constituted a “reckless disregard for the safety of others” (id.; see Riley v County of Broome, 95 NY2d 455, 460-462 [2000]; see generally Saarinen v Kerr, 84 NY2d 494, 501 [1994]). Defendants further established that Petrie did not act with such reckless disregard (see generally Primeau v Town of Amherst, 17 AD3d 1003 [2005], affd 5 NY3d 844 [2005]), and plaintiffs failed to raise a triable issue of fact in opposition to the motion (see Catanzaro v Town of Lewiston, 73 AD3d 1449 [2010]). Present—Martoche, J.P., Centra, Carni, Lindley and Green, JJ.

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Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered September 23, 2009 in a personal injury action. The order, insofar as appealed from, denied in part defendants’ motion for summary judgment.

It is hereby ordered that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted in its entirety and the complaint is dismissed.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Douglas J. Curella when the truck he was operating collided with a snowplow owned by defendant Town of Amherst “and/or” defendant Highway Department and operated by defendant David M. Petrie. Defendants moved for summary judgment dismissing the complaint, and Supreme Court granted only that part of the motion with respect to the 90/180-day category of serious injury within the meaning of Insurance Law § 5102 (d). We conclude that the court should have granted the motion in its entirety, and we therefore reverse the order insofar as appealed from. Defendants met their initial burden of establishing that the snowplow was a hazard vehicle engaged in road work pursuant to Vehicle and Traffic Law § 1103 (b) and thus that it was exempt from the rules of the road except to the extent that its [1302]*1302operation constituted a “reckless disregard for the safety of others” (id.; see Riley v County of Broome, 95 NY2d 455, 460-462 [2000]; see generally Saarinen v Kerr, 84 NY2d 494, 501 [1994]). Defendants further established that Petrie did not act with such reckless disregard (see generally Primeau v Town of Amherst, 17 AD3d 1003 [2005], affd 5 NY3d 844 [2005]), and plaintiffs failed to raise a triable issue of fact in opposition to the motion (see Catanzaro v Town of Lewiston, 73 AD3d 1449 [2010]). Present—Martoche, J.P., Centra, Carni, Lindley and Green, JJ.

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Bluebook (online)

77 A.D.3d 1301, 909 N.Y.S.2d 265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curella-v-town-of-amherst-nyappdiv-2010.

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