This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 79
Alex Irrizarry Deleon,
            Respondent,
        v.
New York City Sanitation
Department, et al.,
            Appellants.




          Elizabeth I. Freedman, for appellants.
          David L. Scher, for respondent.




MEMORANDUM:
          The order of the Appellate Division, insofar as
appealed from, should be affirmed, with costs, and the certified
question answered in the affirmative.
          Plaintiff Alex Irrizarry DeLeon sued defendants New
York City, the City Department of Sanitation and Sanitation

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Department employee Robert P. Falcaro, for personal injuries
incurred when a Department of Sanitation street sweeper operated
by Falcaro collided with DeLeon's vehicle.    According to DeLeon,
he was in his vehicle on the side of the street when Falcaro came
along at a high rate of speed and hit his vehicle from behind.
For his part, Falcaro argued that he rear-ended DeLeon's vehicle
after DeLeon abruptly entered the lane where Falcaro was driving
the sweeper.
          DeLeon moved for summary judgment on the issue of
liability and defendants cross-moved for summary judgment.
Supreme Court denied DeLeon's motion, granted defendants summary
judgment, and dismissed the complaint.    The Appellate Division,
with one justice dissenting in part, modified on the law, denying
defendants' motion and otherwise affirmed (Deleon v New York City
Sanitation Dept., 116 AD3d 404, 404 [1st Dept 2014]).
          The Appellate Division concluded that, under the Rules
of the City of New York in effect at the time of the accident,
defendants were subject to an ordinary negligence standard of
liability.   Applying that standard, the majority held that DeLeon
failed to make out his prima facie case that defendants were the
proximate cause of the collision because there were issues of
fact as to DeLeon's own negligence.    The dissent argued that
under the reckless disregard standard of care set forth in
Vehicle and Traffic Law (VTL) § 1103 (b) and adopted at the time
of the collusion by 34 RCNY § 4-02 (d) (1) (iv), Supreme Court


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properly denied DeLeon's motion and granted defendants summary
judgment because the record lacked evidence of Falcaro's
recklessness within the meaning of the statute.
           Defendants appeal the Appellate Division's order of
modification and contend they are entitled to summary judgement
regardless of what standard of liability is applicable.    The
Appellate Division certified the question whether the order of
the Supreme Court, as modified and otherwise affirmed, was
properly made.
           As an initial matter, we agree with defendants that the
Appellate Division should have applied the recklessness standard
of care to the facts of this case.     The Vehicle and Traffic Law
sets forth a uniform set of traffic regulations known as the
"rules of the road" (see Riley v County of Broome, 95 NY2d 455,
462 [2000]).   However, under VTL § 1642, the City of New York is
authorized to establish additional rules, including rules that
supercede those of the State (see VTL § 1642 [a] ["the
legislative body of any city having a population in excess of one
million, may by local law . . . restrict or regulate traffic on
or pedestrian use of any highway . . .]).    At the time of the
accident, 34 RCNY § 4-02 (d) (1)(v) provided that VTL § 1103
applies "to any person or team or any operator of a motor vehicle
or other equipment while actually engaged in work on a highway"
and that
           "such persons are not relieved from the duty
           to proceed at all times during all phases of

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           such work with due regard for the safety of
           all persons nor shall the foregoing
           provisions of this subparagraph protect such
           persons or teams or such operators of motor
           vehicles or other equipment from the
           consequences of their reckless disregard for
           the safety of others"
(34 RCNY § 4-02 [d] [1] [iv]).
           In Riley, this Court held that the unambiguous language
of VTL § 1103 (b), as further supported by its legislative
history, made clear that the statute exempts from the rules of
the road all vehicles, including sanitation sweepers, which are
"actually engaged in work on a highway" (95 NY2d at 460), and
imposes on such vehicles a recklessness standard of care (see id.
at 466).   The Court further concluded that liability under that
standard is established upon a showing that the covered vehicle's
operator "'has intentionally done an act of an unreasonable
character in disregard of a known or obvious risk that was so
great as to make it highly probable that harm would follow' and
has done so with conscious indifference to the outcome" (id. at
466, citing Saarinen v Kerr, 84 NY2d 494, 501 [1994]).
           DeLeon contends the correct standard is found not in 34
RCNY § 4-02 (d) (1)(iv), but in another provision in effect at
the time of the accident, namely 34 RCNY § 4-02 (d) (1) (iii)
(A), titled "Snow plows, sand spreaders, sweepers and refuse
trucks".   That subparagraph provided, in relevant part,
           "[t]he operator of a New York City Department
           of Sanitation ... sweeper ..., while in the
           performance of his/her duty and acting under
           the orders of his/her superior may make such

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          turns as are necessary and proceed in the
          direction required to complete his/her
          cleaning ... operations subject to § 1102 of
          the [VTL which requires compliance with
          police and other official traffic
          instructions]. The provisions of this
          subparagraph shall not apply while traveling
          to or from such work locations."

DeLeon essentially argues that by its silence this provision
applies a negligence standard to sweeper operators, and that
application of subparagraph (iv) here would render subparagraph
(iii) meaningless.   We disagree because that interpretation is
unsupported by the language of the statute.
          Subparagraph (iv) applies VTL § 1103 to all operators
"actually engaged in work on a highway", which, as the Court held
in Riley includes street sweepers (see Riley, 95 NY2d at 463).
Those workers, then, are subject to the recklessness standard,
which this Court has described as a "minimum standard of care"
(id. at 466 [holding that the legislative history of VTL § 1103
evinces an intent to impose "a minimum standard of care" on
operators of vehicles engaged in road work]).   Even assuming
DeLeon is correct that subparagraph (iii) adopts a negligence
standard, that specific provision applies only in the limited
circumstances set forth therein.   However, because at the time of
the collision Falcaro was operating the sweeper to clean the
street and was not engaged in any of the activities referenced in
subdivision (iii), he was engaged in highway maintenance within
the meaning of subparagraph (iv) and thus subject to the


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                                 - 6 -                        No. 79
recklessness standard of care.
          Notwithstanding DeLeon's arguments to the contrary, the
2013 amendments which repealed subparagraph (iii) (A) do not
support a different interpretation of the statute.   Those
amendments simply eliminated subparagraph (iii), and imposed the
recklessness standard to workers engaged in work on a roadway,
under all circumstances (see 34 RCNY § 4-02, Note 5 ["Statement
of Basis and Purpose in City Record Mar. 4, 2013"]).
          Having resolved the question of the applicable standard
of care, we next consider whether defendants were entitled to
summary judgment.   As we have made clear, the summary judgment
movant bears the heavy burden of establishing "a prima facie
showing of entitlement to judgment as a matter of law, tendering
sufficient evidence to demonstrate the absence of any material
issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324
[1986]; Vega v Restani Const. Corp., 18 NY3d 499, 503
[2012][citations and quotations omitted]; see also CPLR 3212
[b]).
          Unlike the majority of our reckless disregard cases,
Falcaro was not responding to an emergency, but instead was
operating a street sweeper during the ordinary course of his
duties.   With this in mind, we conclude that defendants failed to
meet their burden because material issues of fact remain as to
whether Falcaro operated his street sweeper in a reckless manner
and the extent of DeLeon's own negligence.   As is plain from


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their respective motions, the parties dispute critical factual
details of the collision.    Most notably, DeLeon alleges he was
rear-ended as he sought to move left and away from the curb,
whereas Falcaro contends that he was sweeping on the right side
of the street when he observed DeLeon's vehicle make "a pretty
sudden move" from the middle lane of the street towards the right
curb. In addition, photographs in the record show damage to the
passenger side of DeLeon's vehicle and the sweeper's right front
fender, seemingly consistent with Falcaro's testimony.        However,
Falcaro admitted that when he observed DeLeon's vehicle, he did
not slow down or apply his brakes in an attempt to avoid the
collision, and "hit [DeLeon] fairly well," causing DeLeon's jeep
to spin out 180 degrees.    If a fact finder concludes that the
driver could, but failed to, take evasive action to avoid a
forceful collision, a reasonable jury could find that this
conduct rises to the reckless standard.        Thus, the Appellate
Division properly modified on the law and denied defendants'
motion for summary judgment.
*   *   *   *   *   *   *     *    *      *   *   *   *   *   *   *   *
Order, insofar as appealed from, affirmed, with costs, and
certified question answered in the affirmative, in a memorandum.
Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-
Salaam, Stein and Fahey concur.

Decided June 10, 2015




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