        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

236
CA 13-01534
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.


EDWARD GAWRON AND JOANNE GAWRON,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

TOWN OF CHEEKTOWAGA AND DAVID J. GRZYBEK,
DEFENDANTS-APPELLANTS.


CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (MARTHA E. DONOVAN OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT EDWARD GAWRON.

LAW OFFICE OF MICHAEL D. HOLLENBECK, BUFFALO (MICHAEL D. HOLLENBECK OF
COUNSEL), FOR PLAINTIFF-RESPONDENT JOANNE GAWRON.


     Appeal from an amended order of the Supreme Court, Erie County
(Joseph R. Glownia, J.), entered June 11, 2013. The amended order,
insofar as appealed from, denied the cross motion of defendants for
summary judgment dismissing the complaint.

     It is hereby ORDERED that the amended order so appealed from is
modified on the law by granting defendants’ cross motion in part and
dismissing the negligence claims in the first cause of action and as
modified the amended order is affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries they sustained when the vehicle operated by Edward Gawron
(plaintiff), in which plaintiff Joanne Gawron was a passenger, was
struck by a truck owned by defendant Town of Cheektowaga (Town) and
operated by defendant David J. Grzybek, an employee of the Town. The
truck was equipped with a plow and, at the time of the accident, the
plow was down and Grzybek was in the process of using that plow to
remove accumulated water and debris from the road. As plaintiffs
allege, “the water was propelled onto the windshield of the . . .
truck . . . , blocking [Grzybek’s] vision and causing him to cross
over into an oncoming lane and into . . . [plaintiffs’] vehicle.”
Plaintiffs alleged that the accident “was caused as a result of the
negligent, careless, reckless and unlawful conduct on the part of the
defendants.”

     Plaintiff moved for partial summary judgment on the issue of
defendants’ negligence as well as the affirmative defenses asserted
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against him, and defendants cross-moved for summary judgment
dismissing the complaint. As relevant on appeal, Supreme Court denied
defendants’ cross motion in its entirety.

     Defendants contend on appeal that the court erred in denying
their cross motion because they established that Vehicle and Traffic
Law § 1103 (b) applies as a matter of law and that Grzybek was not
acting recklessly at the time of the accident. We agree with
defendants that, as a matter of law, the truck operated by Grzybek was
“actually engaged in work on a highway” at the time of the accident
(id.), “and thus that it was exempt from the rules of the road except
to the extent that its operation constituted a ‘reckless disregard for
the safety of others’ ” (Curella v Town of Amherst, 77 AD3d 1301,
1301-1302; see generally Riley v County of Broome, 95 NY2d 455, 462).
We further conclude, however, that there are triable issues of fact
whether Grzybek acted with such reckless disregard at the time of the
accident. We therefore modify the amended order by granting only that
part of defendants’ cross motion for summary judgment seeking
dismissal of the negligence claims asserted in the first cause of
action.

     Vehicle and Traffic Law § 1103 “exempts all persons and vehicles
‘while actually engaged in work on a highway’ from the Vehicle and
Traffic Law provisions (§ 1103 [b]), except for those provisions
relating to driving while intoxicated offenses” (Kabir v County of
Monroe, 68 AD3d 1628, 1632, affd 16 NY3d 217). A “highway” is defined
as “[t]he entire width between the boundary lines of every way
publicly maintained when any part thereof is open to the use of the
public for purposes of vehicular travel” (§ 118). Although the road
on which the accident occurred was a service road, it was publicly
maintained and open to the use of the public for the purpose of
vehicular travel (see generally Groninger v Village of Mamaroneck, 17
NY3d 125, 129; People v County of Westchester, 282 NY 224, 228-229).
We thus conclude that the service road constitutes a highway within
the meaning of section 1103 (b) as a matter of law.

     As we have recently written, “the inclusion of the language
‘actually engaged in work on a highway’ indicates that the exemption
applies only when such work is in fact being performed at the time of
the accident . . . To conclude otherwise would render superfluous the
phrase ‘actually engaged’ ” (Hofmann v Town of Ashford, 60 AD3d 1498,
1499). Grzybek was a maintenance janitor whose normal and routine
duties included driving a truck, patching roads and snow plowing. The
accident occurred after Grzybek had taken his lunch break at one Town
building and was returning to another Town building to continue his
work. He took the service road for a “change of scenery.” It is
undisputed that, on the day of the accident, Grzybek had not received
any specific assignment to plow the water and debris from the road and
that he did so on his own “initiative.” It is also undisputed that,
while not a common endeavor, Town maintenance employees such as
Grzybek had taken it upon themselves to use the plows attached to
their trucks to plow puddles, similar to the one plowed by Grzybek,
from highways on other occasions. Plaintiffs contend that, because
Grzybek was not performing his “assigned work,” section 1103 (b) does
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not apply. We are thus called upon to interpret the word “work” as
used in the statute.

     “It is fundamental that a court, in interpreting a statute,
should attempt to effectuate the intent of the Legislature . . . As
the clearest indicator of legislative intent is the statutory text,
the starting point in any case of interpretation must always be the
language itself, giving effect to the plain meaning thereof . . . In
construing statutes, it is a well-established rule that resort must be
had to the natural signification of the words employed, and if they
have a definite meaning, which involves no absurdity or contradiction,
there is no room for construction and courts have no right to add to
or take away from that meaning” (Majewski v Broadalbin-Perth Cent.
Sch. Dist., 91 NY2d 577, 583 [internal quotation marks omitted]).
Indeed, “[t]he function of the courts is to enforce statutes, not to
usurp the power of legislation, and to interpret a statute where there
is no need for interpretation, to conjecture about or to add to or to
subtract from words having a definite meaning, or to engraft
exceptions where none exist are trespasses by a court upon the
legislative domain” (McKinney’s Cons Laws of NY, Book 1, Statutes §
76, Comment at 168). Thus, “new language cannot be imported into a
statute to give it a meaning not otherwise found therein” (§ 94,
Comment at 190), and “a court cannot amend a statute by inserting
words that are not there” (§ 363, Comment at 525; see Matter of
Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 394, rearg
denied 85 NY2d 1033).

     Here, the statute exempts “all [municipal] vehicles ‘actually
engaged in work on a highway’ . . . from the rules of the road”
(Riley, 95 NY2d at 461). The statute does not state that it exempts
only those vehicles engaged in “assigned” work. Plowing water and
debris from a road is work, and that work is within the scope of
Grzybek’s duties. Plaintiffs do not suggest otherwise. Rather, their
contention is that the statute applies only when the vehicles are
“performing their assigned work” and that Grzybek was not assigned to
plow water and debris from the service road on the day of the
accident. In our view, interpreting the statute as the dissent and
plaintiffs suggest improperly adds language to the statute by
qualifying the word “work.” It is not the function of this Court to
usurp the power of the legislature and rewrite a clear and unambiguous
statute. Aside from statutory exceptions not relevant herein, all
municipal vehicles actually engaged in work are exempt from the rules
of the road. Inasmuch as Grzybek’s vehicle was actually engaged in
work, albeit unassigned work, the reckless disregard standard of care
set forth in Vehicle and Traffic Law § 1103 (b) applies as a matter of
law.

     Defendants further contend that, as a matter of law, Grzybek’s
conduct did not rise to the level of reckless disregard for the safety
of others within the meaning of Vehicle and Traffic Law § 1103 (b).
We reject that contention. Even assuming, arguendo, that defendants
established their entitlement to judgment as a matter of law on that
issue, we conclude that plaintiffs, in opposition to defendants’ cross
motion, submitted evidence from which a jury could find that Grzybek
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                                                         CA 13-01534

“had intentionally committed 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 [did] so with conscious
indifference to the outcome’ ” (Ferreri v Town of Penfield, 34 AD3d
1243, 1243-1244, quoting Saarinen v Kerr, 84 NY2d 494, 501).

      All concur except LINDLEY and SCONIERS, JJ., who dissent and vote
to affirm in the following Memorandum: We respectfully dissent
because we conclude, based on the facts and circumstances of the
subject motor vehicle accident, that Vehicle and Traffic Law § 1103
(b) does not apply as a matter of law in this case. We therefore
conclude that Supreme Court properly refused to dismiss the negligence
claims in the first cause of action. Specifically, while we agree
with the majority that the access road where the accident occurred
constitutes a “highway” (see generally Groninger v Village of
Mamaroneck, 17 NY3d 125, 129; Healy v City of Tonawanda, 234 AD2d 982,
983), we conclude that the actions of defendant David J. Grzybek, an
employee of defendant Town of Cheektowaga (Town), at the time of the
accident are not protected by the statute because he was not “actually
engaged in work on a highway” as contemplated by the statute (§ 1103
[b]).

     It is undisputed that (1) Grzybek’s duties had included plowing
snow, but on the day of the accident he was assigned to perform
maintenance and janitorial work at the Town’s senior center; (2) on
this date in late March, the snow plow was on the pickup truck that
Grzybek was driving only because the Town had not yet had the time or
opportunity to remove it; (3) Grzybek was returning from lunch at the
time of the accident and he had chosen this route along this access
road simply for “a change of scenery”; (4) it was not common to use a
plow to move water from a road, but it had been done on previous
occasions; (5) there was no proof that plows were ever used to remove
debris from a road; (6) Grzybek was not instructed to remove the water
and debris from this access road, but did so on his own initiative;
(7) he had, in fact, never been instructed by a supervisor to use a
plow to remove either water or debris from roads; (8) there is no
evidence suggesting that the water or debris posed an immediate hazard
on this access road; and (9) Grzybek was terminated as a result of
this incident. Notably, Grzybek testified that, depending on the
nature of the debris, the usual procedure for removing debris from
roads involved using high lifts or brooms.

     Vehicle and Traffic Law § 1103 is a statute in derogation of the
common law. “ ‘The Legislature in enacting statutes is presumed to
have been acquainted with the common law, and generally, statutes in
derogation or in contravention thereof, are strictly construed, to the
end that the common law system be changed only so far as required by
the words of the act and the mischief to be remedied’ ” (Kirshtein v
AmeriCU Credit Union, 65 AD3d 147, 152, quoting McKinney’s Cons Laws
of NY, Book 1, Statutes § 301 [a], Comment). Moreover, given that
this statute is “ ‘in derogation of [a] plaintiff’s common-law
rights,’ the statute . . . should be strictly construed in the
plaintiff[s’] favor” (Goodwin v Pretorius, 105 AD3d 207, 216).
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                                                         CA 13-01534

     The majority’s overly broad application of section 1103 (b) in
this case stands in stark contrast to the much narrower scope that
courts have afforded to Vehicle and Traffic Law § 1104. Section 1104
applies the reckless disregard standard to an “authorized emergency
vehicle,” but only if the driver of that vehicle is engaged in an
“emergency operation” as that term is defined in Vehicle and Traffic
Law § 114-b and the driver is engaged in one of the specific types of
protected conduct enumerated in Vehicle and Traffic Law § 1104 (b)
(see Kabir v County of Monroe, 16 NY3d 217, 220; LoGrasso v City of
Tonawanda, 87 AD3d 1390, 1391).

     Given the limits that the statute and case law apply to Vehicle
and Traffic Law § 1104 for first responders, we conclude that the
legislature could not possibly have intended to apply such a broad
interpretation to the phrase “actually engaged in work on a highway”
in Vehicle and Traffic Law § 1103 (b) as that applied by the majority
here. It is clear that, on the day of the subject accident, Grzybek
was not assigned to clear water or debris from this access road or any
other road in the Town. Moreover, he was not assigned that day to use
the plow on this pickup in any way whatsoever, and his use of the
truck on this day was solely to transport himself and any equipment
necessary to perform maintenance and janitorial work. By applying
Vehicle and Traffic Law § 1103 (b) as a matter of law in this case,
the majority is effectively holding that the statute applies in every
case to all public employees, no matter their status, duties or job
assignments, who, at any time, decide, in their sole discretion, to
use even the most inept, incompetent and ill-advised methods to
perform a task that could possibly be construed as “work on a
highway,” thereby leaving injured persons uncompensated for their
injuries unless they can satisfy the “reckless disregard for the
safety of others” standard. Such a result extends the scope of
Vehicle and Traffic Law § 1103 (b) far beyond what the legislature
intended, especially given the corresponding limits that Vehicle and
Traffic Law § 1104 places on the police and other first responders.
We would therefore apply the standard of ordinary negligence to
defendants in this personal injury action, and we would affirm the
amended order.




Entered:   May 2, 2014                          Frances E. Cafarell
                                                Clerk of the Court
