Majority
p. 854John P. Wilson, Appellant, v State of New York, Respondent. (Claim No. 93508.) [703 NYS2d 848]
—Judgment unanimously affirmed without costs. Memorandum: The Court of Claims properly dismissed this claim arising from a collision between claimant’s vehicle and a snowplow owned by defendant and operated by defendant’s employee. The court properly determined that the snowplow, plowing snow on a highway at the time of the accident, was a “vehicle * * * [or] other equipment * * * actually engaged in work on a highway” within the meaning of Vehicle and Traffic Law § 1103 (b) (see, McDonald v State of New York, 176 Misc 2d 130 , 139; see also, Riley v
p. 855
County of Broome, 263 AD2d 267 ). “According considerable deference to the findings of the Court of Claims, as is appropriate” (Morrisseau v State of New York, 237 AD2d 803 , 804), we conclude that its determination that the snowplow operator did not act in “reckless disregard for the safety of others” is fully supported by the record (Vehicle and Traffic Law § 1103 [b]; see, McDonald v State of New York, supra, at 143; see also, Szczerbiak v Pilat, 90 NY2d 553 , 557). Finally, the court properly concluded that Vehicle and Traffic Law § 1103 need not be pleaded as an affirmative defense (see, McDonald v State of New York, supra, at 141). (Appeal from Judgment of Court of Claims, McNamara, J. — Negligence.) Present — Green, A. P. J., Hayes, Pigott, Jr., and Balio, JJ.
Cases cited
- McDonald v. State 176 Misc 2d 130 at 139 p. 854
- Riley v. County of Broome 263 AD2d 267 p. 855
- Morrisseau v. State 237 AD2d 803 at 804 p. 855
- Szczerbiak v. Pilat 90 NY2d 553 at 557 p. 855