Alex Irrizarry Deleon, Respondent,v.New York City Sanitation Department, et al., Appellants.

Brief

N.Y.April 29, 2015

APL-2014-00190 Bronx County Clerk’s Index No. 300612/11 Court of Appeals STATE OF NEW YORK ALEX IRRIZARRY DELEON, Plaintiff-Respondent, against NEW YORK CITY SANITATION DEPARTMENT, THE CITY OF NEW YORK and ROBERT P. FALCARO, Defendants-Appellants. >> >> BRIEF FOR PLAINTIFF-RESPONDENT BLOCK O’TOOLE & MURPHY, LLP Attorneys for Plaintiff-Respondent One Penn Plaza, Suite 5315 New York, New York 10119 212-736-5300 cmark@blockotoole.com Date Completed: November 13, 2014 Of Counsel: Christina R. Mark David L. Scher To Be Argued By: David L. Scher Time Requested: 30 Minutes i Table of Contents Table of Cases and Authorities..................................................................................ii Preliminary Statement………………………………………………………………1 Questions Presented...................................................................................................3 Counterstatement of Facts………………………………………………………….4 Argument I. Defendant-Appellants Were Not Entitled To A Reckless Standard At The Time Of The Subject Accident……………………………...…..13 A. The Reckless Standard In VTL §1103(b) Did Not Apply To Defendant-Appellants’ City Street Sweeper On A City Street…13 B. The Applicable City Rules Neither Provided, Nor Adopted, A Reckless Standard For Defendant-Appellants’ City Sweeper…16 C. Therefore, Defendant-Appellants’ City Sweeper Remained Subject To The Ordinary Negligence Standard Of Liability…..32 D. Even If An Exemption Was Applicable, Defendant-Appellants’ City Sweeper Would Not Qualify For A Reckless Standard As It Was Not Actually Engaged In Its Sweeping Work……………..34 II. Under Ordinary Negligence, Defendant-Appellants Are Liable As A Matter Of Law For The Subject Rear-End Collision…………………37 III. Even If A Reckless Standard Did Apply There Would Still Be Issues Of Fact That Preclude Dismissal…………………………………….39 Conclusion ..............................................................................................................43 ii Table of Authorities CASES Baines v. City of New York, 269 A.D.2d 309, 703 N.Y.S.2d 463 (1st Dept. 2000)…………………………………………………………………...40 Bicchetti v. County of Nassau, 49 A.D.3d 788, 854 N.Y.S.2d 401 (2d Dept. 2008)……………………………………………………………………39 Bingham v. N.Y. City Transit Auth., 99 N.Y.2d 355, 786 N.E.2d 28 (2003)...16-17 Bliss v. State, 95 N.Y.2d 911, 913, 742 N.E.2d 106 (2000)………………….40, 41 Cabrera v. Rodriguez, 72 A.D.3d 553, 900 N.Y.S.2d 29 (1st Dept. 2010)…...37, 38 Campbell v. City of Elmira, 84 N.Y.2d 505, 644 N.E.2d 993 (1994)………….39-40 Corrigan v. Porter Cab Corp., 101 A.D.3d 471, 955 N.Y.S.2d 336 (1st Dept. 2012)………………………………………………………………..37, 38 Council of Sch. Sup’rs & Adm’rs v. New York City Dept. of Educ., 87 A.D.3d 883, 929 N.Y.S.2d 578 (1st Dept. 2011) lv. denied, 19 N.Y.3d 803 (2012)……..............14 Criscione v. City of New York, 97 N.Y.2d 152, 762 N.E.2d 342 (2001)…………..20 Cumming v. Camara, 66 A.D.3d 515, 887 N.Y.S.2d 59 (1st Dept. 2009)………….14 Curella v. Town of Amherst, 77 A.D.3d 1301, 909 N.Y.2d 265 (4th Dept. 2010)…15 Davis v. Inc. Vill. of Babylon, New York, 13 A.D.3d 331, 786 N.Y.S.2d 550 (2d Dept. 2004)………..………..………..………..………..………..………...33, 35 Dicturel v. Dukureh, 71 A.D.3d 558, 897 N.Y.S.2d 87 (1st Dept. 2010)………...37 Eaton v. New York City Conciliation & Appeals Bd., 56 N.Y.2d 340, 437 N.E.2d 1115 (1982)…………………………………………………………..19 Ewens v. Roy, 45 A.D.3d 353, 846 N.Y.S.2d 12 (1st Dept. 2007)………..……...38 iii Farese v. Town of Carmel, 296 A.D.2d 436, 745 N.Y.2d 197 (2d Dept. 2002)…….15 Faria v. City of Yonkers, 84 A.D.3d 1306, 924 N.Y.S.2d 147 (2d Dept. 2011)………………………………………………………………...15, 39 Faria v. City of Yonkers, 32 Misc. 3d 1217(A), 934 N.Y.S.2d 33 (Westchester Sup. Ct. 2009), aff’d, 84 A.D.3d 1306 (2d Dept. 2011)…………………………….40-41 Farrington v. New York City Transit Auth., 33 A.D.3d 332, 822 N.Y.S.2d 51 (1st Dept. 2006) …………………………………………………………………..38 Ferguson v. Iqbal, 33 A.D.3d 657, 823 N.Y.S.2d 180 (2d Dept. 2006)…………….14 Fong v. Town of Montgomery, 94 A.D.3d 946, 942 N.Y.S.2d 368 (2d Dept. 2012).………..………..………..………..………..………..………..33, 35 Foster v. New York City Hous. Auth., 251 A.D.2d 42, 672 N.Y.S.2d 718 (1st Dept. 1998)…………………………………………………………………...40 Francisco v. Schoepfer, 30 A.D.3d 275, 817 N.Y.S.2d 52 (1st Dept. 2006)….37, 38 Gov’t Employees Ins. Co. v. Town of Oyster Bay, 26 Misc. 3d 34, 894 N.Y.S.2d 322 (App. Terms, 9th & 10th Districts, 2009)………………………36 Guzman v. Bowen, 38 A.D.3d 837, 833 N.Y.S.2d 548 (2d Dept. 2007)………35, 36 Hofmann v. Town of Ashford, 60 A.D.3d 1498, 876 N.Y.S.2d 588 (4th Dept. 2009)………..………..………..………..………..………..……34-35, 36 Kabir v. County of Monroe, 16 N.Y.3d 217, 945 N.E.2d 461 (2011)…………32, 33 Levine v. GBE Contr. Corp., 2 A.D.3d 596 (2d Dept. 2003)………………………15 Lindgren v. New York City Hous. Auth., 269 A.D.2d 299, 704 N.Y.S.2d 30 (1st Dept. 2000)……………………………………………………………….40, 41 Lobello v. Town of Brookhaven, 66 A.D.3d 646, 887 N.Y.2d 161 (2d Dept. 2009).15 Misicki v. Caradonna, 12 N.Y.3d 511, 909 N.E.2d 1213 (2009)…………………16 iv Mouring v. City of New York, 112 A.D.3d 588, 976 N.Y.S.2d 185 (2d Dept. 2013)……………………………………………………………………20 P.B.A. v. City of New York, 41 N.Y.2d 205, 359 N.E.2d 1338 (1976)…………..19 Pinto v. Tenenbaum, 35 Misc. 3d 1201(A), 950 N.Y.S.2d 610 (Sup. Ct. 2012)…....14 Polan v. State of N.Y. Ins. Dep’t, 3 N.Y.3d 54, 814 N.E.2d 789 (2004)…………...18 Riley v. County of Broome, 95 N.Y.2d 455, 742 N.E.2d 98 (2000)……………………………………………13, 15-16, 18, 21, 22, 23-24, 35, 39 Rockhead v. Troche, 17 A.D.3d 118, 791 N.Y.S.2d 823 (1st Dept. 2005)……….40 Rodriguez v. Budget Rent-A-Car Sys., Inc., 44 A.D.3d 216, 841 N.Y.S.2d 486 (1st Dept. 2007) ………..………..………..………..………..………..……….37-38 Saarinen v. Kerr, 84 N.Y.2d 494, 644 N.E.2d 988 (1994)……………………39, 41 Schultz Mgmt. v. Bd. of Standards & Appeals, 103 A.D.2d 687, 477 N.Y.S.2d 351 (2d Dept. 1984) aff’d, 64 N.Y.2d 1057 (1985)………………………………..18-19 Somersall v. New York Tel. Co., 52 N.Y.2d 157, 436 N.Y.2d 157 (1981)………14 Somersall v. New York Tel. Co., 74 A.D.2d 302, 427 N.Y.S.2d 247 (1st Dept. 1980)…………………………………………………………………...21 Small v. City of New York, 54 A.D.3d 747, 864 N.YS.2d 437 (2d Dept. 2008)……………………………………………………………………15 Vespe v. Kazi, 62 A.D.3d 408, 878 N.Y.S.2d 46 (1st Dept. 2009)……………….37 Walker v. Town of Hempstead, 84 N.Y.2d 360, 643 N.E.2d 77 (1994)……...19, 23 Wilmot v. New York, 73 A.D.2d 201, 426 N.Y.S.2d 8 (1st Dept. 1980)………...20 Yatauro v. Mangano, 17 N.Y.3d 420, 955 N.E.2d 343 (2011)…………………...23 v STATUTES & REGULATIONS New York Stat. Law §240……………………….………………………………..19 New York Vehicle and Traffic Law §114-b………………………………………20 New York Vehicle and Traffic Law §1103......................................................passim New York Vehicle and Traffic Law §1104……………………………………….20 New York Vehicle and Traffic Law §1642……………………………………….16 Title 34 of the Rules of the City of New York §4-02.......................................passim OTHER NYC DOT, “Notice of Adoption,” Mar. 4, 2013, available at www.nyc.gov/html/dot/downloads/pdf/2013-03-trafrule-refuse- collection.pdf ..........................………………………………………………...26-30 1 Preliminary Statement Plaintiff-Respondent Alex Irrizarry Deleon submits this brief in response to that submitted by Defendant-Appellants in connection with their appeal of the Decision of the Appellate Division, First Department, entered on April 1, 2014, which reversed the motion court’s dismissal of this action under a reckless standard of liability, and reinstated Plaintiff-Respondent’s action, holding that ordinary negligence was the applicable standard of liability. Defendant-Appellants fail to demonstrate that they were entitled to a reckless standard in the operation of their vehicle at the time of the subject rear-end collision. Before the courts below, Defendant-Appellants argued that Section 1103(b) of the New York Vehicle and Traffic Law (“VTL”) applied to their New York City street sweeper despite a conflicting Rule of the City of New York. Specifically, Defendant-Appellants sought to enjoy the benefits of VTL §1103(b)’s qualified immunity, which exempts certain vehicles from the rules of the road to the extent that their liability is limited to a ‘reckless disregard’ standard. Defendant-Appellants further contended that a City Rule could not supersede a State VTL provision. Defendant-Appellants’ arguments regarding which law applied were properly rejected by all of the appellate justices. (R260-65). It is now undisputed that City Rule 4-02, as it existed at the time of the subject 2 accident is the controlling law in this case. It is further undisputed that City Rule 4-02 was amended after the subject accident. The purpose of amending the Rule, as stated by its drafters, was so “[City] sweepers will now be subject to the general [reckless standard] exemption.” The issue on this appeal is whether under City Rule, 4-02, as it existed at the time of the subject accident and before it was amended, City sweepers were subject to the exemption’s reckless standard. As it existed at the time of the accident, Rule 4-02(d)(1)(iii) specifically and explicitly governed rules-of-the-road exemptions applicable to City sweepers. It did not mention a reckless standard, recklessness or VTL §1103(b). A separate subparagraph, Rule 4-02(d)(1)(iv), governed a category of vehicles called ‘highway workers’. It provided a reckless standard and adopted the VTL §1103(b) exemption for its highway workers category. It did not define highway workers. It did not adopt any VTL definitions for its vehicles. (Another separate subparagraph, Rule 4-02(d)(1)(i), governed ‘authorized emergency vehicles.’ It adopted the VTL §1104 privileges for its authorized emergency vehicles category. It adopted the VTL §114-b definition for its vehicles.) As such, Defendant-Appellants’ City sweeper in this case was not entitled to a reckless standard and the Appellate Division Decision reinstating this action should be affirmed. 3 Question Presented I. Did the appellate division correctly hold that the Defendant-Appellant City street sweeper was not entitled to a reckless standard since it was governed by a City Rule that did not provide a reckless standard for City sweepers and which was amended post-accident to extend a reckless standard to City sweepers, and thus an ordinary negligence standard applied, under which Plaintiff-Respondent’s case was reinstated? A. Plaintiff-Respondent respectfully submits that the answer is yes. 4 Counterstatement of Facts This matter arises from a rear-end collision that occurred on October 19, 2010, on East 176th Street near its intersection with Marmion Avenue in Bronx County, New York. (R45; R110, R117; R164-66).1 On the date of the accident, Plaintiff-Respondent Alex Irrizarry Deleon was permissibly operating a Jeep motor vehicle. (R46-47). On the date of the accident, Defendant-Appellant Robert P. Falcaro was operating a New York City Department of Sanitation “broom truck”/street sweeper. (R91-92, R117-18). Defendant-Appellant The City of New York was the owner of said sweeper and admits that Mr. Falcaro was permissibly operating it. (R112, lines 19-25; R118, lines 12-25; R36, paragraphs 5, 6; R164-66). In the area of the accident, East 176th Street was a one-way street with no designated lanes. (R48-49; R115, lines 2-4; R122-23). Prior to the accident, Mr. Deleon had been traveling on East 176th Street, en route from his home to drop off scrap metal at a proper facility. (R46-47, R49). Prior to the accident, Mr. Falcaro had been at a garage facility on East 176th Street, for his lunch break. Mr. Falcaro was leaving the garage, in order to travel to his assigned street-sweeping route. (R119, lines 19-23). From the garage driveway leading onto East 176th Street, Mr. Falcaro observed the Plaintiff-Respondent 1 Numbers proceeded by “R” refer to page numbers in the Record on Appeal. 5 vehicle and pulled out onto East 176th Street behind it. (R119-20; R54-55). Mr. Falcaro testified that he kept the Plaintiff-Respondent vehicle in his sight as he operated the City sweeper behind it, from the time he entered East 176th Street up until the time of the accident. (R120, lines 17-21). While traveling on East 176th Street, Mr. Deleon noticed that the scrap metal had moved about his vehicle, towards his head, so he had to stop and safely reposition the scrap metal. (R51-57). After fixing the scrap metal, Mr. Deleon got back in his vehicle, turned off the hazard lights, turned on the left signal and looked for traffic. (R51-57). Mr. Deleon saw the Defendant-Appelant sweeper rapidly approaching, but was unable to avoid being struck from behind. (R57-60). Mr. Falcaro testified that he approached the stopped Plaintiff-Respondent vehicle from behind, but did not slow or stop the sweeper. (R123). Specifically, he testified “I was just going to proceed ahead.” (R124, line 25). The subject accident occurred when the Defendant-Appellant City sweeper struck the rear of the Plaintiff-Respondent vehicle. (R51, lines 3-20; R117-18, R128- 29; R164-66). Mr. Falcaro testified that he “hit [Plaintiff-Respondent] fairly well.” (R129). Both parties testified that the impact caused the Plaintiff-Respondent vehicle to spin out across the roadway, knocking Mr. Deleon unconscious and resulting in bleeding from his head. (R61-62; R129, lines 17-19; R132, lines 15-17). 6 Mr. Falcaro admitted that, prior to impact, he did not apply the brakes or honk the horn. (R124, lines 2-25; see R136-37). Instead, he saw the stopped Plaintiff- Respondent vehicle, and continued on into it. (R124-25; R136-37). Mr. Falcaro further testified that he thought he could just go around the Plaintiff-Respondent vehicle, passing it on the right side on a single-lane road. (R121-22). Mr. Falcaro testified that he saw the Plaintiff-Respondent vehicle begin to move, slowly, within their lane, from at least fifty (50) feet away, ten (10) seconds before impact, however, he did not stop or apply the brakes or change course to avoid the collision. (R121, R126, R128). At the time of the accident, although Mr. Falcaro had turned the sweeper on, he was not sweeping his route, but was rather “leaving lunch on [his] way to start the route.” (R112, lines 19-23; R118, lines 12-15). On April 5, 2012, Plaintiff-Respondent moved for summary judgment on the issue of liability upon the aforementioned facts. (R7-166). Defendant-Appellants submitted papers in opposition, and in support of their cross motion, dated May 13, 2012. (R168-225). Plaintiff-Respondent submitted papers in reply, and in opposition to the cross motion, on September 17, 2012. (R228-48). Defendant-Appellants submitted papers in reply, dated October 12, 2012. (R249-55). Defendant-Appellants did not dispute that the subject accident was a rear-end collision in which their City sweeper struck the Plaintiff-Respondent vehicle from 7 behind. Instead, Defendant-Appellants argued that ordinary negligence principles did not apply to them, that they could only be liable for reckless operation of the City sweeper and that the City sweeper was not operated recklessly as a matter of law. The Defendant-Appellants’ argument relied on the New York State Vehicle and Traffic Law Section 1103. Plaintiff-Respondent argued that the operation of a City sweeper on a City street was governed by the Rules of the City of New York, specifically Traffic Rule 4-02, which validly superseded VTL §1103. Plaintiff-Respondent argued that the City Rule did not provide for the application of a reckless standard to the Defendant- Appellant City sweeper on a City street when the subject accident occurred in 2010. Instead, an ordinary negligence standard governed this case. The City amended The Rules of the City of New York, specifically Traffic Rule 4-02, on March 4, 2013, so that beginning April 3, 2013, City “sweepers will now be subject to” the reckless standard, as is provided by VTL §1103. The existence of, and available information regarding, the pending amendment was before the motion court. (R243-48). On November 2, 2012, the motion court issued a decision and order, denying Plaintiff-Respondent’s motion for summary judgment and granting Defendant- Appellants’ cross motion, dismissing the action in its entirety. (R4-6). The motion court decision was based on the application of the reckless standard of care. The law 8 applied was VTL §1103. The motion court did not address the Rules of the City of New York. (See R4-6). Plaintiff-Respondent appealed the motion court’s decision dismissing this action to the Appellate Division, First Department. In support of his appeal to the First Department, Plaintiff-Respondent argued that a reckless standard did not apply to the Defendant-Appellant City street sweeper. Simply put, VTL §1103 was superseded by City Rule 4-02(d)(1), and Rule 4-02(d)(1) did not provide a reckless standard exemption for Defendant-Appellants’ City sweeper. There was a specific subparagraph governing City sweepers on City streets, 4-02(d)(1)(iii), which did not provide a reckless standard. Separate and apart from the sweeper-specific subparagraph, there was a subparagraph governing a separate category of vehicles, 4-02(d)(1)(iv). That separate subparagraph provided a reckless standard and selectively and partially adopted VTL §1103 for that separate category of vehicles, omitting and excluding City sweepers. Rule 4-02(d)(1) was amended after the subject accident to expand and change the application of the reckless standard. The Statement of Basis and Purpose published with the post- accident amendments specifically stated that City “sweepers will now be subject to” the reckless standard. Thus, before amendment, as the Rules existed at the time of the accident, Defendant-Appellants’ City sweeper was not subject to a reckless standard. 9 In opposition to the appeal, Defendant-Appellants argued that a City Rule could not supersede a New York State VTL provision. Therefore, Defendant- Appellants argued, VTL §1103(b)’s reckless standard should be applied to their City sweeper. Defendant-Appellants further argued that a reckless standard should be applied because VTL §1103(b) language is used in a subparagraph of Rule 4-02. (That subparagraph applied to a different category of vehicles than City sweepers.) Defendant-Appellants further argued that Rule 4-02 was not ambiguous and the 2013 amendments to Rule 4-02 ‘clearly show[ed] that there was no ambiguity.’ Defendant-Appellants, however, admitted that the amendments were enacted ‘to clarify the [reckless standard] exemption’ for City sweepers. In ‘now’ subjecting City sweepers to the exemption, the amendments, Defendant-Appellants argued, intended to ‘more expansively’ apply the reckless standard exemption. The Appellate Division, First Department held that VTL §1103(b)’s reckless standard did not apply to Defendant-Appellants’ City sweeper. (R260). Therefore, the First Department held, an ordinary negligence standard applied. (R260-61). The First Department further held that the subparagraph of Rule 4-02 that contained a reckless standard exemption (4-02(d)(1)(iv)) did not apply to the separate category of City sweeper vehicles, whose exemptions were separately and expressly provided in a separate subparagraph (4-02(d)(1)(iii)). The First Department further pointed to the City Council statement that the 2013 amendments’ effect was that “sweepers will 10 now be subject to the [reckless standard] exemption” and found this to be “a strong indication that they were not so subject before then.” (R261). The First Department modified the motion court’s decision dismissing Plaintiff-Respondent’s action and reinstated the case. All justices concurred in the First Department decision, except Justice DeGrasse. Justice DeGrasse dissented on the grounds that the majority misinterpreted the controlling City Rule. Justice DeGrasse’s position was that since one subparagraph of the Rule, 4-02(d)(1)(iv), adopted part of VTL §1103(b) and applied its reckless standard to one City category of vehicles [which the City called “highway workers,” a category that has not been defined by the City, the VTL or the courts]; and VTL §1103(b) itself, in full, applies to a category of vehicles called hazard vehicles; and hazard vehicles, as defined by VTL §117-a, include street sweepers; then the City street sweeper in this case [even though it is a separate vehicle category from ‘highway workers’ under the City Rules] should be entitled to a reckless standard. Justice DeGrasse further opined that since no standard was referenced in the separate exemptions provided to City sweepers in 4-02(d)(1)(iii), then recklessness, rather than ordinary negligence, should apply. (R264). Defendant-Appellants now appeal to this Court on the grounds that a reckless standard should be applied to their City street sweeper, despite, or because of, the City Rules existing at the time of the accident. Defendant-Appellants abandon their arguments to the courts below that a City Rule could not supersede a State VTL 11 provision. They now apparently concede that City Rule 4-02, not VTL §1103(b), is the governing law in this case. Defendant-Appellants do not deny that a subparagraph of the governing City Rule, 4-02(d)(1)(iii), specifically and expressly governed exemptions applicable to City sweepers at the time of the subject accident. Instead, Defendant-Appellants argue that this Court should apply the reckless standard exemption provided in a different subparagraph, 4-02(d)(1)(iv), even though said subsection applied to a separate category of ‘highway workers.’ Under the City Rules, the highway workers category was separated from the sweepers category. These two categories were separated in the same manner that highway workers were separated from authorized emergency vehicles. The City did not provide a definition for highway workers. Sweepers were defined and identified by name. Authorized emergency vehicles were defined by reference to, and clear adoption of, certain VTL definitions. It remains undisputed that the City Rules were amended after the subject accident. The City drafters’ statement of the amendments’ effect indicates that “City “sweepers will now be subject to” the reckless standard. (R243-48). Defendant-Appellants ask this Court to ignore the City Council’s explanatory statement on the grounds that it is not accurate. Defendant-Appellants contend that the City Rule drafters-in stating that they were amending the Rules in order to 12 extend a reckless standard to City sweepers going forward-were mistaken. Instead, Defendant-Appellants argue, this Court should look only to the explanatory statements of Defendant-Appellants’ counsel-that the Rules were not amended to extend the reckless standard to City sweepers because City sweepers were already entitled to the reckless standard. Plaintiff-Respondent now opposes their appeal to this Court. 13 Argument I. Defendant-Appellants Were Not Entitled To A Reckless Standard At The Time Of The Subject Accident The Defendant-Appellant City of New York street sweeper was not entitled to a reckless standard of liability at the time of the subject rear-end collision since the State VTL §1103(b) reckless standard exemption did not apply to the City sweeper; the applicable City Rule, 34 RCNY §4-02, did not provide a reckless standard exemption for the City sweeper; and, in the absence of an exemption, an ordinary negligence standard applied. A. The Reckless Standard In VTL §1103(b) Did Not Apply to Defendant-Appellants’ City Street Sweeper On A City Street It is not disputed that Section 1103(b) of the New York State Vehicle and Traffic Law provides an exemption from the rules of the road for “vehicles … actually engaged in work on a highway” and “hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway.” VTL §1103(b). The exemption is qualified in that such vehicles must not be operated with reckless disregard for the safety of others. That is, owners and operators are subject to a reckless standard of liability for accidents occurring while their vehicle is engaged in its work or hazardous operation. See Riley v. County of Broome, 95 N.Y.2d 455, 463, 742 N.E.2d 98 (2000). Hazard vehicles, under VTL §1103(b), include street 14 sweepers engaged in street sweeping operation. Id. at 460-65. However, “section 1103 of the Vehicle and Traffic Law does not apply in the City of New York” where superseded by a conflicting Rule of the City of New York. Somersall v. New York Tel. Co., 52 N.Y.2d 157, 163, 436 N.Y.2d 157 (1981)2. This Court has not addressed the conflicting City Rule, 4-02(d)(1), at issue in this case. As Defendant-Appellants now concede, the City is explicitly empowered to enact a City Traffic Rule that supersedes a New York State VTL provision. See VTL §1642; see also, e.g., Council of Sch. Sup’rs & Adm’rs v. New York City Dept. of Educ., 87 A.D.3d 883, 885, 929 N.Y.S.2d 578 (1st Dept. 2011) lv. denied, 19 N.Y.3d 803 (2012); Cumming v. Camara, 66 A.D.3d 515, 516, 887 N.Y.S.2d 59 (1st Dept. 2009)); Ferguson v. Iqbal, 33 A.D.3d 657, 658, 823 N.Y.S.2d 180 (2d Dept. 2006); Pinto v. Tenenbaum, 35 Misc. 3d 1201(A), 950 N.Y.S.2d 610 (Kings Sup. Ct. 2012). In this case, the City exercised its traffic-regulating authority and chose to enact Rule 4-02(d)(1). At the time of the subject accident, subparagraph (iii) of that Rule expressly governed the operation of City street sweepers on City streets. 34 RCNY §4-02(d)(1)(iii) (“Snow plows, sand spreaders, sweepers and refuse trucks”). As such, Rule 4-02(d)(1)(iii) is the controlling law for the City sweeper in this case. 2 To the extent that Defendant-Appellants claim that Plaintiff-Respondent inaptly cited Somersall below, it should be noted that Defendant-Appellants argued that a City Rule could not supersede a VTL provision before the two courts below. Defendant-Appellants had ample opportunity, but failed to address VTL §1642 and Somersall before both courts, including at oral argument in the appellate division. Respectfully, Defendant-Appellants have waived these arguments. 15 No courts have applied VTL §1103(b) to City street sweepers on City streets when faced with the conflicting City Rule 4-02(d)(1) that existed at the time of the accident in this case. In suggesting otherwise, Defendant-Appellants merely cite the same inapposite case law they cited below: Riley, supra, 95 N.Y.2d 455 (2000), which involved an accident that occurred outside of the City of New York with a non-City vehicle; and Small v. City of New York, 54 A.D.3d 747, 864 N.Y.2d 437 (2d Dept. 2008), which involved a non-sweeper vehicle (a front-end loader). The remaining cases Defendant-Appellants cite similarly involve non-City accidents (Faria v. City of Yonkers, 84 A.D.3d 1306, 924 N.Y.2d 147 (2d Dept. 2011)), non- sweeper vehicles (Levine v. GBE Contr. Corp., 2 A.D.3d 596, 768 N.Y.2d 357 (2d Dept. 2003)) or both (Lobello v. Town of Brookhaven, 66 A.D.3d 646, 887 N.Y.2d 161 (2d Dept. 2009); Farese v. Town of Carmel, 296 A.D.2d 436, 745 N.Y.2d 197 (2d Dept. 2002); Curella v. Town of Amherst, 77 A.D.3d 1301, 909 N.Y.2d 265 (4th Dept. 2010)). (See Appellants Brief, pages 11-13). To be clear, Riley v. County of Broome, on which Defendant-Appellants rely extensively, is not controlling here as it did not involve a City of New York sweeper vehicle on a City of New York Street. Riley, supra, 95 N.Y.2d 455 (2000). Contrary to Defendant-Appellants’ contention, the First Department’s decision here is not “contrary” to Riley at all. (Appellants Brief, page 11). There was simply no issue of whether the VTL or the Rules of the City of New York governed 16 Riley, as it involved a Broome County sweeper and New York State snowplows operating outside of the City of New York. Riley, supra, 95 N.Y.2d 455 (2000). The Riley decision was limited to the meaning and applicability of VTL §1103(b) only. Id. It did not consider, let alone determine any controlling holding as to the issue in this case-the meaning and applicability of City Rule 4-02. In addition, all of the justices in the appellate division found that the City Rule, 4-02(d)(1), was the governing law of this case. (R260-65). As such, City Rule 4-02(d)(1) is undisputedly the controlling law of this case. Any argument to the contrary is unpreserved for this Court. The only issue here is the interpretation and application of the City Rule. (See R258, R260-65). B. The Applicable City Rules Neither Provided, Nor Adopted, A Reckless Standard For Defendant-Appellants’ City Sweeper For the first time, Defendant-Appellants argue that “[Rule 4-02] subdivision (d)(1)(iv) adopted into local law the recklessness standard of VTL §1103(b)” and “Multiple elements of subdivision (d)(1)(iv) confirm that the subdivision, …, adopted in full the standards of VTL §1103(b).” (Appellants Brief, page 14). These new arguments were not raised below. They are therefore not properly before this Court. See Misicki v. Caradonna, 12 N.Y.3d 511, 514-22, 909 N.E.2d 1213 (2009) (“we do not resolve cases on grounds raised for the first time on appeal”); Bingham v. N.Y. City Transit Auth., 99 N.Y.2d 355, 359-60, 786 N.E.2d 17 28 (2003) (“Defendants now add a new argument. … As we have many times repeated, this Court with rare exception does not review questions raised for the first time on appeal. Unlike the Appellate Division, we lack jurisdiction to review unpreserved issues in the interest of justice” (citations omitted)). Regardless, Defendant-Appellants’ new arguments are as misguided as their previous arguments before the courts below were. Plaintiff-Respondent does not, and has not, disputed the reckless standard provided by Rule 4-02(d)(1)(iv). Plaintiff-Respondent’s position continues to be that the City street sweeper in this case was governed by Rule 4-02(d)(1)(iii) (which has since been amended and essentially eliminated), not by 4-02(d)(1)(iv). Rule 4-02(d)(1)(iii), as it existed at the time of the subject 2010 accident3, was the exemption provision that expressly applied to “a New York City Department of 3 In full, 34 RCNY § 4-02(d)(1)(iii) provided: (iii) Snow plows, sand spreaders, sweepers and refuse trucks. (A) The operator of a New York City Department of Sanitation snow plow, sand spreader, or sweeper, and the operator of a Department of Transportation vehicle when performing the same function, while in the performance of his/her duty and acting under the orders of his/her superior may make such turns as are necessary and proceed in the direction required to complete his/her cleaning, snow removal, or sand spreading operations subject to §1102 of the Vehicle and Traffic Law. The provisions of this subparagraph shall not apply while traveling to or from such work locations. (B) The operator of a New York City Department of Sanitation refuse truck may temporarily stand on the roadway side of a vehicle parked at the curb, provided that no curb space is available within fifteen feet, while expeditiously loading refuse, subject to §1102 of the Vehicle and Traffic Law. 18 Sanitation … sweeper.” And, by its own terms, Rule 4-02(d)(1)(iii) did not provide the Defendant-Appellant City sweeper with a reckless standard for the subject accident. There is no mention of ‘reckless’, ‘recklessness’ or VTL §1103(b) at all. As such, by the plain language of the Rule, the Defendant-Appellant City sweeper was not entitled to a reckless standard. See, e.g., Polan v. State of N.Y. Ins. Dep’t, 3 N.Y.3d 54, 58, 814 N.E.2d 789 (2004) (“As a general rule, a statute’s plain language is dispositive” (citing Riley, supra, 95 N.Y.2d 455 (2000))). The structure and context of the Rule confirmed that the Defendant-Appellant City sweeper was not entitled to a reckless standard. Rule 4-02(d)(1)(iv)4, a completely separate subparagraph, provided an exemption with a reckless standard for “highway workers.” Rule 4-02(d)(1)(iv) omitted City sweepers from this exemption provision and therefore excluded them from the reckless standard. See Schultz Mgmt. v. Bd. of Standards & Appeals, 103 2 In full, 34 RCNY § 4-02(d)(1)(iv) provided: (iv) Highway workers. Unless specifically made applicable, the provisions of these rules shall not apply to persons, teams, motor vehicles, and other equipment actually engaged in work authorized by the City of New York, the State of New York or the federal government while on a highway. Section 1103 of the Vehicle and Traffic Law is applicable to any person or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway. As §1103 of the Vehicle and Traffic Law provides, such persons are not relieved from the duty to proceed at all times during all phases of 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. 19 A.D.2d 687, 688-89, 477 N.Y.S.2d 351 (2d Dept. 1984) aff’d, 64 N.Y.2d 1057 (1985) (“[where a] statute describes the particular situation in which it is to apply, ‘an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded’” (quoting N.Y. Stat. Law §240; citing P.B.A. v. City of New York, 41 N.Y.2d 205, 359 N.E.2d 1338 (1976); Eaton v. New York City Conciliation & Appeals Bd., 56 N.Y.2d 340, 437 N.E.2d 1115 (1982))); see N.Y. Stat. Law §240 (“The maxim expressio unius est exclusio alterius is applied in the construction of the statutes, … , an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.”); Walker v. Town of Hempstead, 84 N.Y.2d 360, 367, 643 N.E.2d 77 (1994) (“we can only construe the Legislature’s enumeration of six, specific locations in the exception (i.e., streets, highways, bridges, culverts, sidewalks or crosswalks) as evincing an intent to exclude any others not mentioned (citation omitted)). Defendant-Appellants suggest that City sweepers, while explicitly addressed in subparagraph 4-02(d)(1)(iii), were really just a subset of the ‘highway workers’ addressed in subparagraph 4-02(d)(1)(iv). However, these two subparagarphs, like each of Rule 4-02(d)(1)’s subparagraphs, provided distinct exemptions to distinct categories of vehicles, as specified by their titles. See 34 RCNY §4-02(d)(1)(i) (“Authorized emergency vehicles”); §4-02(d)(1)(ii) (“Traffic/parking control vehicles”); §4-02(d)(1)(iii) 20 (“Snow plows, sand spreaders, sweepers and refuse trucks”); §4-02(d)(1)(iv) (“Highway workers”); §4-02(d)(1)(v) (“Highway inspection and quality assurance vehicles …”). No separate definitions provision existed. City ‘sweepers’ must not be a subset of ‘highway workers.’ If they were, then ‘authorized emergency vehicles’ must also be a subset of ‘highway workers’. And there is no question that authorized emergency vehicles are not a subset of highway workers; they are a distinct category, subject to the exemptions specified in their own subparagraph. See 34 RCNY §4-02(d)(1)(i) (“The operator of an authorized emergency vehicle when involved in an emergency operation as defined in §114-b of the Vehicle and Traffic Law may exercise the privileges set forth in §1104 of the Vehicle and Traffic Law, subject to the conditions set forth therein.”); see also Criscione v. City of New York, 97 N.Y.2d 152, 762 N.E.2d 342 (2001); Mouring v. City of New York, 112 A.D.3d 588, 976 N.Y.S.2d 185 (2d Dept. 2013); Wilmot v. New York, 73 A.D.2d 201, 205, 426 N.Y.S.2d 8 (1st Dept. 1980). Instead, City sweepers were a distinct category, governed by 4-02(d)(1)(iii), from ‘highway workers,’ governed by 4-02(d)(1)(iv). Rule 4-02(d)(1)(iii) exemptions explicitly applied to, inter alia, “City … sweeper[s] … in the performance of his/her duty”. Whereas, Rule 4-02(d)(1)(iv) exemptions applied to “highway workers” “actually engaged in work on a highway.” Rule 4-02(d)(1)(iii)’s list of exemptions applicable to City sweepers did not 21 include a reckless standard. Whereas, Rule 4-02(d)(1)(iv)’s exemptions applicable to highway workers did include a reckless standard. Rule 4-02(d)(1)(iii) did not provide for the application of VTL §1103(b)- and its ‘reckless standard’ for statutorily defined “hazard vehicles”-to its City sweepers. Whereas, Rule 4-02(d)(1)(iv) explicitly provided for the application of VTL §1103(b) to its highway workers. Rule 4-02(d)(1)(iii) did not otherwise mention or reference ‘reckless’ in the privileges applicable to its City sweepers. Whereas, Rule 4-02(d)(1)(iv) explicitly spelled out that its highway workers were subject to liability under a ‘reckless’ standard, in addition to referencing and adopting VTL §1103(b)’s reckless standard. Moreover, contrary to Defendant-Appellants’ contention, Riley, supra, 95 N.Y.2d at 462-63 (2000) does not require a finding that the City intended the two distinct categories it created to be treated like a single category. The City Rule’s separate statutory category of City sweepers, 4-02(d)(1)(iii), was correctly distinguished from the separate statutory category of ‘highway workers’, 4- 02(d)(1)(iv) by the First Department below. The First Department did not, as Defendant-Appellants accuse, “repeat[] the same mistake” it made in Somersall v. New York Tel. Co., 74 A.D.2d 302, 307-09, 427 N.Y.S.2d 247 (1st Dept. 1980), which led to this Court “disavowing” that case in Riley. (Appellants Brief, page 20). First of all, this Court “disavowed” the First Department’s decision in 22 Somersall as to the interpretation of VTL §1103(b), not City Rule 4-02(d)(1). Secondly, VTL §1103(b) refers to and regulates vehicles “actually engaged in work” and “hazard vehicles” within a single cohesive subsection and, in fact, a single sentence. See VTL §1103(b). Consequently, as this Court held in Riley, the VTL treats “hazard vehicles” as a subset of, rather than “a distinct class from, ‘work vehicles.’” See Riley, supra, 95 N.Y.2d at 462-63 (2000). Whereas, Rule 4-02(d)(1) referred to and regulated ‘highway workers’ in a completely separate and distinct subparagraph from City sweepers. If, as Defendant-Appellants suggest, the City had intended to include City sweepers in the reckless exemption it created in 4-02(d)(1)(iv) but also provide certain additional exemptions for them, it would have addressed City sweepers in 4- 02(d)(1)(iv), whether in a separate clause within the same subsection (as VTL §1103(b) does with highway workers and hazard vehicles5) or as a subdivision of 4- 5 In full, VTL §1103(b) provides: Unless specifically made applicable, the provisions of this title, except the provisions of sections eleven hundred ninety-two through eleven hundred ninety- six of this chapter, shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway nor shall the provisions of subsection (a) of section twelve hundred two apply to hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway but shall apply to such persons and vehicles when traveling to or from such hazardous operation. The foregoing provisions of this subdivision shall not relieve any person, or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway from the duty to proceed at all times during all phases of such work with due regard for the safety of all persons nor shall the foregoing provisions 23 02(d)(1)(iv) (i.e. 4-02(d)(1)(iv)(A)). As such, the structure of the Rules confirmed that Defendant-Appellants’ City sweeper was not entitled to a reckless standard. See Yatauro v. Mangano, 17 N.Y.3d 420, 426-27, 955 N.E.2d 343 (2011) (“Courts must harmonize the various provisions of related statutes and ... construe them in a way that renders them internally compatible”); Walker, supra, 84 N.Y.2d at 367 (1994) (“where a statute creates provisos or exceptions … the inclusion of such provisos or exceptions is generally considered to deny the existence of others not mentioned” (citation omitted)). The history of the Rules further confirms that Defendant-Appellants’ City sweeper was not entitled to a reckless standard. See Riley, supra, 95 N.Y.2d at 464 (2000) (“Pertinent also are ‘the history of the times, the circumstances surrounding the statute’s passage, and … attempted amendments’” (citation omitted)). Defendant-Appellants now contend that because “the City Department of Transportation’s significant amendment of subdivision (d)(1)(iv) in 2007 came seven years after this Court’s decision in Riley resolved that the recklessness standard of VTL 1103(b) applies to street sweepers … The City … must be understood to have incorporated the Court’s definitive interpretation of VTL 1103(b) 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. 24 when it adopted the VTL provision into law.” (Appellants Brief, page 16). However, Defendant-Appellants’ new contention actually provides further support for Plaintiff-Respondent’s consistent position. The City, knowing the expansive judicial interpretation of VTL §1103(b)’s reckless standard, intentionally chose to maintain a separate section to govern the operation of City street sweepers, 4-02(d)(1)(iii), rather than including them in 4-02(d)(1)(iv). The City then knowingly omitted City street sweepers (failing to reference them either by name or by citation to 4-02(d)(1)(iii)) in the subsection providing the reckless standard, 4- 02(d)(1)(iv), so as to exclude them from it. The City further acted knowingly in maintaining the City street sweepers provision as an entirely separate subparagraph 4-02(d)(1)(iii), rather than making it a subdivision of subparagraph 4-02(d)(1)(iv) or eliminating it entirely, so as to permit sweepers to be subsumed by an expansive interpretation of VTL 1103(b) as adopted by 4-02(d)(1)(iv). The City chose how to word, structure and title the amendments it enacted to Rule 4-02(d)(1) in 2007. In choosing what to add, what to leave and where to place the new exemption and its reckless standard, The City expressed its intent to exclude City sweepers from the reckless standard provided in 4-02(d)(1)(iv). Moreover, the City could easily have adopted VTL §1103 in full rather than provide for its specific and limited applicability in only certain scenarios. Instead, the City took care to reject VTL §1103, and only partially incorporate select clauses 25 and confine them to a single, self-contained subparagraph. The City even went out of its way to define and designate its own category of “highway workers” (rather than using any pre-existing VTL category) to which VTL §1103 would apply. With Rule 4-02(d)(1), the City Council drew a clear distinction between “highway workers” and “snow plows, sand spreaders, sweepers and refuse trucks,” by adopting separate regulations in separate subsections that applied separately, by their very titles, to these two categories. This must be interpreted as intentional. In fact, the City could have done nothing at all if it intended for VTL §1103(b) to govern the City as it does the rest of the State. Instead, the City acted, enacting a Rule picking and choosing specific clauses of VTL §1103(b) and selecting certain categories of vehicles for their application while obviously omitting others. The fact that, in light of the expansive interpretation and general applicability of VTL §1103(b), the City chose to enact its own reckless standard exception in City Rule 4-02(d)(1)(iv) that did not mention City sweepers or contain the exemptions pertaining to them, confirms the City’s intent to exclude them from it. That the City Council’s intent was to exclude City sweepers from the reckless standard exemption in Rule 4-02(d)(1)(iv) makes sense in the context of the City of New York, where, unlike other areas in the State, there are many more sweepers, the sweepers are being operated much more frequently and the sweepers are being operated on streets that are much more crowded. Giving the many operators of City 26 sweepers carte blanche to drive negligently, day in and day out, on crowded New York City streets obviously creates a much greater danger than providing a limited reckless standard exemption to only highway workers in the City of New York. As such, the history of the Rules further confirmed that the Defendant- Appellant City sweeper was not entitled to a reckless standard. At the very least, in arguendo, the City Rules were ambiguous at the time of the subject accident. In fact, Rules 4-02(d)(1)(iii) and 4-02(d)(1)(iv) were amended in 2013, after the subject accident, specifically to extend the reckless standard exemption to City sweepers. (See R241-48; NYC DOT, “Notice of Adoption,” Mar. 4, 2013, available at www.nyc.gov/html/dot/downloads/pdf/2013-03-trafrule-refuse-collection.pdf6; 6 In full, the New York City Department of Transportation Notice of Adoption provides: DEPARTMENT OF TRANSPORTATION Notice of Adoption of rules relating to snow and garbage removal. NOTICE IS HEREBY GIVEN PURSUANT TO THE AUTHORITY VESTED IN THE Commissioner of Transportation by subdivision (a) of Section 2903 of the New York City Charter and in accordance with the requirements of Section 1043 of the New York City Charter, that the Department of Transportation hereby adopts the amendments to subparagraphs (iii) and (iv) of paragraph (1) of subdivision (d) of Section 4-02 of Chapter 4 of Title 34 of the Official Compilation of the Rules of the City of New York, the Traffic Rules. This rule was first published on December 31, 2012, and a public hearing was held on February 5, 2013. This rule shall take effect 30 days from the date hereof. New material is indicated by underlining; deleted material is in brackets [ ]. 27 “Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this office, unless otherwise specified or unless the context clearly indicates otherwise. STATEMENT OF BASIS AND PURPOSE The Commissioner of the New York City Department of Transportation (DOT) is authorized to promulgate rules regarding parking and traffic operations in the City pursuant to Section 2903(a) of the New York City Charter. The adopted rule repeals subparagraph (iii)(A) of paragraph (1) and eliminates a redundancy such that operators of DOT and New York City Department of Sanitation snow plows, sand/salt spreaders and sweepers will now be subject to the general exemption set forth in subparagraph (iv) of that same subsection. Subparagraph (iv) exempts all operators working on behalf of the city, state or federal government from the provisions of the traffic rules set forth in Chapter 4 of Title 34 of the Rules of the City of New York while they are engaged in work on a roadway. This exemption is intended to allow these operators to effectively perform their work on the roadway. Additionally, subparagraph (iii)(B) of paragraph (1) is being amended to include a specific exemption allowing refuse collection vehicles working on behalf of the City of New York to drive in a bicycle lane. They may only drive in the bicycle lane while collecting refuse and recyclable material. Finally, subparagraph (iv) is being amended to clarify that the intent of the subparagraph is to apply the exemption from the traffic rules to workers and vehicles working on behalf of the City of New York, the State of New York or the federal government. §1. Subparagraphs (iii) and (iv) of paragraph (1) of subdivision (d) of Section 4-02 of Title 34 of the Rules of the City of New York are amended, to read as follows: (iii) [Snow plows, sand spreaders, sweepers and] [r]Refuse [trucks] collection vehicles. [(A) The operator of a New York City Department of Sanitation snow plow, sand spreader, or sweeper, and the operator of a Department of Transportation 28 see also NYC DOT, “Public Hearing Notice,” Feb. 5, 2013, available at www.nyc.gov/html/dot/downloads/pdf/2013-02-05-public-hearing-proposed-rule- snow.pdf. Specifically, the City DOT amended Rule 4-02 so that, beginning April 3, 2013, City “sweepers will now be subject to the general exemption.” (See “Notice of vehicle when performing the same function, while in the performance of his/her duty and acting under the orders of his/her superior may make such turns as are necessary and proceed in the direction required to complete his/her cleaning, snow removal, or sand spreading operations subject to § 1102 of the Vehicle and Traffic Law. The provisions of this subparagraph shall not apply while traveling to or from such work locations. (B)] The operator of a [New York City Department of Sanitation] refuse [truck] collection vehicle working on behalf of the City of New York may: (A) temporarily stand on the roadway side of a vehicle parked at the curb, provided that no curb space is available within fifteen feet, while [expeditiously] loading refuse, subject to § 1102 of the Vehicle and Traffic Law; and (B) drive on or across a designated bicycle lane while loading refuse, subject to § 1102 of the Vehicle and Traffic Law. (iv) Highway workers and vehicles. Unless specifically made applicable, the provisions of these rules shall not apply to persons, teams, motor vehicles, and other equipment working on behalf of the City of New York, the State of New York or the federal government while actually engaged in work [authorized by the City of New York, the State of New York or the federal government] while on a highway. Section 1103 of the Vehicle and Traffic Law is applicable to any person or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway. As section 1103 of the Vehicle and Traffic Law provides, such persons are not relieved from the duty to proceed at all times during all phases of 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. 29 Adoption,” supra, footnote 6). The general exemption is the VTL §1103 reckless standard at issue here. There is no other way to logically interpret the plain meaning of this statutory change, except to find that prior to this law change (and at the time of the subject accident), City sweepers were NOT entitled to the exemption, and therefore were subject to an ordinary negligence standard. It is equally clear that VTL §1103 was not applicable to the subject City sweeper on a City street at all. Otherwise, if VTL §1103 did in fact apply, there would be absolutely no rational explanation for the City to amend Rule 4-02. At the very least, in arguendo, the ambiguity in the law as it existed at the time of this incident, left open whether sweepers had the benefit of a reckless standard or were subject to an ordinary negligence one. In such a case, the ambiguity should be resolved in favor of the regular common law standard, as opposed to the option that would alter it. This is especially true where, as here, the very party seeking to obtain and enjoy the benefit of the anti-common law interpretation is part of the same City of New York government that actually drafted and passed that ambiguous law in the first place. Surely, in this scenario, the public should get the benefit of any prior ambiguity, especially where the City has tacitly conceded, through these amendments, that the prior law was at the very least ambiguous, and where the public had a fair expectation that ordinary negligence principles apply to 30 any vehicle operator in the absence of a clear statutory exception. The stated intent of the 2013 post-accident amendments-according to their own Statement of Basis and Purpose-was “that operators of DOT and New York City Department of Sanitation … sweepers [that were previously governed by Rule 4-02(d)(iii)] will now be subject to the general exemption set forth in [Rule 4- 02(d)(iv)].” (See NYC DOT, “Notice of Adoption,” Mar. 4, 2013, supra, footnote 6 (emphasis added); see also R241-48). The express reason the Rules were “being amended [was] to clarify” the application of said ‘general exemption’. By stating that the very purpose of amending the Rules was to “now” give City sweepers the benefit of a reckless standard, the City acknowledged that sweepers did not have the benefit of such a standard prior to the amendment. Otherwise, the City would have had no rational reason to amend the Rules. Below, Defendant-Appellants agreed that the post-accident amendments to Rule 4-02(d)(1) were “intended to be more expansive in its application of the ‘reckless disregard’ standard.” Therefore, the pre-amended Rule 4-02(d)(1) was less expansive in that it did not include sweepers (governed by Rule 4-02(d)(1)(iii)) in the general exemption and its reckless standard provided in Rule 4-02(d)(1)(iv). Now, Defendant-Appellants contend that the post-accident amendments’ purpose statement language is just plain wrong. (Appellants Brief, pages 21-22 (“Its reference to a ‘redundancy’ … is not fully accurate …. Nor was its statement that 31 sweepers, … would ‘now’ be subject to the general exemption in subparagraph (iv) accurate”)). Defendant-Appellants further argue that this Court should not consider the Statement of Basis and Purpose-which was drafted by an agency of the Defendant-Appellant City-because its drafting was “not artful” and not “accurate.” (Appellants’ Brief, pages 21-22). Respectfully, the Statement of Basis and Purpose is a valuable tool for interpreting the purpose of the amendments, and therefore interpreting the Rules as they existed before the amendments. To disregard the City Rules’ drafters’ own statement of the new Rules’ purpose would be remiss. Moreover, the Defendant-Appellant City’s admission that the Statement of Basis and Purpose is “not artful” and not “accurate” concedes its ambiguity, and presents a further reason to construe that ambiguity against its drafter, the Defendant-Appellant City herein. Whether the writers of the Rules were inaccurate in stating the intended purpose of the new Rules or the Defendant-Appellants are inaccurate in interpreting them, fairness requires that the ambiguity be construed against the City and in favor of the default, ordinary standard of liability. Defendant-Appellants further contend that the “explanatory” language “is too slender a reed upon which to base a change in the applicable standard of liability.” (Appellants Brief, page 22). However, Defendant-Appellants are the party seeking a change in the applicable standard of liability here, not Plaintiff-Respondent. After all, applying an 32 ordinary negligence standard would not be a change-applying a reckless standard would be. When faced with ambiguity, the default is the common law rule, i.e. the ordinary negligence standard. Here, the First Department majority did take the more conservative approach: leaving in place the ordinary rule, at common law, rather than heightening the standard in the absence of a clear statutory exemption from it. See, e.g., Kabir v. County of Monroe, 16 N.Y.3d 217, 220, 945 N.E.2d 461 (2011) (“reckless disregard standard of care … only applies when a driver … engages in the specific conduct exempted from the rules of the road by [the statutory exemption]. Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.”). As such, the 2013 amendments to Rules 4-02(d)(1)(iii) and 4-02(d)(1)(iv) demonstrate that the applicability of the ‘general exemption’ and its reckless standard was, in arguendo, at least ambiguous and Defendant-Appellants’ City sweeper was therefore not entitled to a reckless standard. C. Therefore, Defendant-Appellants’ City Sweeper Remained Subject To The Ordinary Negligence Standard Of Liability Contrary to Defendant-Appellants’ argument, the First Department did not improperly “carv[e] out” City street sweepers from the reckless standard of care. (Appellants Brief, page 17). The Appellate Division properly applied the ordinary negligence standard. 33 The ordinary negligence standard is the ordinary, default, standard of liability. A different standard, such as recklessness, does not apply unless some exemption, immunity or other exception to the ordinary standard makes it applicable. See, e.g., Kabir, supra, 16 N.Y.3d at 220 (2011); Davis v. Inc. Vill. of Babylon, New York, 13 A.D.3d 331, 332, 786 N.Y.S.2d 550 (2d Dept. 2004) (“plaintiffs demonstrated their entitlement to the application of an ordinary negligence standard of care [since defendants were] not entitled to invoke the exemption” (citations omitted)). And here, Defendant-Appellants were not entitled to an exemption from the ordinary standard to an extraordinary, reckless standard. As such, an ordinary negligence standard governed Defendant-Appellant Falcaro’s conduct at the time of the subject rear-end collision. See, e.g., Kabir, supra, 16 N.Y.3d at 220 (2011) (“reckless disregard standard of care … only applies when a driver … engages in the specific conduct exempted from the rules of the road by [the statutory exemption]. Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence.”); see also, e.g., Fong v. Town of Montgomery, 94 A.D.3d 946, 947, 942 N.Y.S.2d 368 (2d Dept. 2012) (“defendants failed to meet their prima facie burden of establishing the applicability of the so-called ‘rules of the road’ exemption … and, therefore, were not entitled to the application of the ‘reckless disregard’ standard of care” (citations omitted)); Davis, supra, 13 A.D.3d at 332 (2d Dept. 2004). 34 D. Even If An Exemption Was Applicable, Defendant-Appellants’ City Sweeper Would Not Qualify For A Reckless Standard As It Was Not Actually Engaged In Its Sweeping Work The State exemption in VTL §1103 for hazard vehicles and highway work vehicles provides a reckless standard of liability for covered work vehicles “while actually engaged in work on a highway” and for covered hazard vehicles “while actually engaged in hazardous operation on or adjacent to a highway” but does NOT provide the reckless standard to such vehicles “when traveling to or from such hazardous operation.” VTL § 1103(b) (emphasis added). Similarly, The City exemption in Rule 4-02 for City sweepers specifically provided that it did “not apply [to City sweepers] while traveling to or from such work locations.” 34 RCNY §4-02(d)(1)(iii) (emphasis added). And the City exemption for “highway workers” provided that, “Section 1103 of the Vehicle and Traffic Law is applicable to any person or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway.” 34 RCNY §4-02 (d)(1)(iv) (emphasis added). It follows that even vehicles that are clearly covered by an exemption do not qualify for a reckless standard under it if they are not actually engaged in covered work; when not so engaged, an ordinary negligence standard of liability applies. See Hofmann v. Town of Ashford, 60 A.D.3d 1498, 1499-500, 876 N.Y.S.2d 588 (4th 35 Dept. 2009) (“at the time of the collision, Fuller was not driving on part of his plow route but instead was traveling from one part of his route to another by way of a county road that he was not responsible for plowing. …. The exemption does not apply to a driver who is traveling from one work site to another, and it likewise does not apply here. … the ordinary negligence standard of care should be applied at trial” (citations omitted)); Guzman v. Bowen, 38 A.D.3d 837, 837-38, 833 N.Y.S.2d 548 (2d Dept. 2007) (“Contrary to the defendants’ argument, however, Vehicle and Traffic Law §1103(b) applies only to vehicles ‘actually engaged in work upon a highway,’ …. Since the ordinary municipal refuse collection in which the garbage truck was engaged at the time of the accident is not such work, the statute is inapplicable.” (citing Riley, supra, 95 N.Y.2d at 464 (2000))); Davis, supra, 13 A.D.3d at 332 (2d Dept. 2004) (“plaintiffs demonstrated their entitlement to the application of an ordinary negligence standard of care with evidence that the defendant Frank A. Swanson, Jr., was not ‘actually engaged in work on a highway’ when the street sweeper he was operating crossed a double yellow line separating eastbound and westbound traffic and struck the plaintiffs’ vehicle. The record demonstrates that Swanson was merely traveling from one work site to another, and therefore, the defendants are not entitled to invoke the exemption of Vehicle and Traffic Law §1103(b)” (citations omitted)); see also, e.g., Fong, supra, 94 A.D.3d at 947 (2d Dept. 2012) (“defendants failed to meet their prima facie burden of 36 establishing the applicability of the so-called ‘rules of the road’ exemption contained in Vehicle and Traffic Law §1103(b) … and, therefore, were not entitled to the application of the ‘reckless disregard’ standard of care” (citations omitted)); Gov’t Employees Ins. Co. v. Town of Oyster Bay, 26 Misc. 3d 34, 36-37, 894 N.Y.S.2d 322 (App. Terms, 9th & 10th Districts, 2009) (“sanding truck …, when actually engaged in sanding operations is subject to a statutory standard of care to avoid ‘reckless disregard for the safety of others.’ However, when not so actually engaged, a sanding vehicle is subject to the lower ‘ordinary negligence’ standard of care” (citations omitted)). Here, Defendant-Appellant Falcaro admitted that, at the time of the subject accident, he was not engaged in sweeping on the route he was responsible for sweeping. Instead, he testified that he was traveling to his route with the sweeper down. (R118). Given the clear language of VTL §1103(b), Rule 4-02(d)(1)(iii)(A) and Rule 4-02(d)(1)(iv), none of their benefits apply here because Mr. Falcaro was merely ‘traveling to’ his work site. That Mr. Falcaro put his sweeper down does not at all alter the fact that he was merely ‘traveling to’ his work site. See Hofmann, supra, 60 A.D.3d at 1499-500 (4th Dept. 2009); Guzman, supra, 38 A.D.3d 837 (2d Dept. 2007). If it did, then any worker could choose to ‘work’ wherever he or she pleased, and have carte blanche to drive negligently. 37 II. Under Ordinary Negligence, Defendant-Appellants Are Liable As A Matter Of Law For The Subject Rear-End Collision There is no dispute that the subject accident occurred when Defendant- Appellants’ City sweeper struck the rear portion of the Plaintiff-Respondent vehicle. As such, under an ordinary negligence standard, the burden shifted to Defendant-Appellants to “provide a non-negligent explanation, in evidentiary form, for the collision.” Dicturel v. Dukureh, 71 A.D.3d 558, 559, 897 N.Y.S.2d 87 (1st Dept. 2010) (citations omitted); see also Corrigan v. Porter Cab Corp., 101 A.D.3d 471, 472, 955 N.Y.S.2d 336 (1st Dept. 2012); Cabrera v. Rodriguez, 72 A.D.3d 553, 553-54, 900 N.Y.S.2d 29 (1st Dept. 2010); Francisco v. Schoepfer, 30 A.D.3d 275, 275-76, 817 N.Y.S.2d 52 (1st Dept. 2006). Defendant-Appellants failed to do so. Mr. Falcaro’s claim that the stopped Plaintiff-Respondent vehicle began to move in their single lane when Mr. Falcaro was at least fifty (50) feet away, and had ten (10) seconds to react, is not a non- negligent explanation. See, e.g., Vespe v. Kazi, 62 A.D.3d 408, 409, 878 N.Y.S.2d 46 (1st Dept. 2009) (claim that lead vehicle failed to use hazard lights insufficient where rear driver saw lead vehicle from fifty feet away); Rodriguez v. Budget Rent- A-Car Sys., Inc., 44 A.D.3d 216, 224, 841 N.Y.S.2d 486 (1st Dept. 2007) (“claim that the driver of the leading vehicle stopped suddenly does not constitute a sufficient, nonnegligent explanation … nor does his contention that the leading 38 vehicle failed to signal a turn”); Ewens v. Roy, 45 A.D.3d 353, 353, 846 N.Y.S.2d 12 (1st Dept. 2007) (claim that lead vehicle acted suddenly insufficient where “there is no evidence that the taxi’s driver was unable to see the red light ahead, or other evidence that might tend to explain his failure to keep a safe distance away”); Farrington v. New York City Transit Auth., 33 A.D.3d 332, 332, 822 N.Y.S.2d 51 (1st Dept. 2006) (claim that lead vehicle’s brake lights malfunctioned insufficient where rear driver saw lead vehicle three seconds before impact). Defendant-Appellants’ arguments based on photographs, do not alter the undisputed fact that this accident occurred when the Defendant-Appellant vehicle struck the Plaintiff-Respondent vehicle from behind. In any event, references to damage to a rear portion of the Plaintiff-Respondent vehicle and a front portion of the Defendant-Appellant vehicle, cannot raise any issue of material fact. Similarly, Defendant-Appellants’ allegations of an illusory lane change on a single lane road are insufficient to create an issue of fact. Furthermore, there is no legal support for Defendant-Appellants’ contention that Plaintiff-Respondent had a duty to see behind him and avoid being struck from behind. See Corrigan, supra, 101 A.D.3d at 472 (1st Dept. 2012); Cabrera, supra, 72 A.D.3d at 553-54 (1st Dept. 2010); Francisco, supra, 30 A.D.3d at 275-76 (1st Dept. 2006). As such, under an ordinary negligence standard, Plaintiff-Respondent is entitled to summary judgment as to liability. 39 III. Even If A Reckless Standard Did Apply There Would Still Be Issues Of Fact That Preclude Dismissal Even, in arguendo, if a reckless standard were to be applied in derogation of the New York City Traffic Rules as well as the VTL, Defendant-Appellants must not be granted summary judgment as there are issues of fact as to whether Mr. Falcaro recklessly operated Defendant-Appellants’ City sweeper. Assuming, arguendo, that the “reckless disregard for the safety of others” standard applied, Mr. Falcaro’s conduct would be in breach of this standard of care if he “intentionally d[id] 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.’” Saarinen v. Kerr, 84 N.Y.2d 494, 501, 644 N.E.2d 988 (1994) (citing Prosser and Keeton, Torts §34, at 213 (5th ed.); Restatement (2d) of Torts §500)); see Faria, supra, 84 A.D.3d at 1306-07 (2d Dept. 2011); Bicchetti v. County of Nassau, 49 A.D.3d 788, 854 N.Y.S.2d 401 (2d Dept. 2008) (citing Riley, supra, 95 N.Y.2d 455 (2000); additional citations omitted)). “The decision to ignore a grave risk, which is likely to result in harm to others, may satisfy the intentional aspect sufficient to impose liability.” Campbell v. City of Elmira, 84 N.Y.2d 505, 510-11, 644 N.E.2d 993 (1994) (citations omitted). For example, in Campbell, the First Department held that the driver of a fire truck may have been reckless when he drove through a red traffic light without using 40 a siren, horn or flashing lights. Campbell, supra, 84 N.Y.2d 505. In Bliss v. State, 95 N.Y.2d 911, 913, 742 N.E.2d 106 (2000), this Court concluded that defendant truck operator may have been reckless when he backed his truck up at an unsafe speed where there was “no indication that [truck operator] attempted to slow down or sound his horn before colliding with claimant’s automobile” and “there was no evidence that a required spotter was provided for the operation.” In Baines v. City of New York, 269 A.D.2d 309, 309, 703 N.Y.S.2d 463 (1st Dept. 2000), the First Department held that a police officer may have been reckless when he proceeded into an intersection at an unsafe speed against the traffic signal and when he failed to sound his siren and made no attempt to avoid colliding with the plaintiff’s vehicle. In Foster v. New York City Hous. Auth., 251 A.D.2d 42, 672 N.Y.S.2d 718 (1st Dept. 1998), the First Department found that a police car may have been reckless when he failed to use lights and sirens and traveled at an excessive speed under the existing conditions. Under a reckless standard of liability, summary judgment is inappropriate where an issue fact exists as to recklessness. See, e.g., Rockhead v. Troche, 17 A.D.3d 118, 791 N.Y.S.2d 823 (1st Dept. 2005); Lindgren v. New York City Hous. Auth., 269 A.D.2d 299, 704 N.Y.S.2d 30, 34 (1st Dept. 2000); Faria v. City of Yonkers, 32 Misc. 3d 1217(A), 934 N.Y.S.2d 33 (Westchester Sup. Ct. 2009), aff’d, 84 A.D.3d 1306 (2d Dept. 2011). “Where contradictory deposition testimony are 41 proffered, as here, judgment as a matter of law should not be granted. . . . The court, on a motion for summary judgment, should not determine issues of credibility.” Faria, supra, 32 Misc. 3d 1217(A) (Westchester Sup. Ct. 2009) (citing CPLR §3212(b); additional citations omitted); see also Bliss, supra, 95 N.Y.2d at 913 (2000) (“factual and credibility issues remain that prevent us from concluding as a matter of law that Lawler acted recklessly-in conscious disregard of ‘a known or obvious risk that was so great as to make it highly probable that harm would follow’-claimant raised a triable issue for the jury to consider, and summary judgment was improperly granted.” (citations omitted)); Lindgren, supra, 269 A.D.2d at 303 (1st Dept. 2000) (“Even if we chose to apply the ‘reckless disregard’ standard, it is for the trier of fact to decide whether Maher complied with that standard, given that so many key details of the accident are the subject of contradictory allegations” (citing in comparison Saarinen, supra, 84 N.Y.2d 494 (1994) (facts of accident undisputed)). Here, even if the reckless standard were applied there are issues of fact to decide, concerning whether Defendant-Appellant Falcaro complied with that standard. First, Mr. Falcaro admits that despite seeing the Plaintiff-Respondent vehicle, he knowingly proceeded through the intersection, towards the stopped Plaintiff-Respondent vehicle, and did not slow down at any point as he approached it. (See R120, R123). Indeed, Mr. Falcaro admits that he did not slow down, brake 42 or sound his horn prior to colliding with the back of the Plaintiff-Respondent vehicle. (R123-24). In addition, Plaintiff-Respondent Deleon testified that Mr. Falcaro was driving “too fast” for the conditions existing at the time of the impact. (R56). Moreover, even defense counsel admitted that the testimony of Mr. Falcaro and Mr. Deleon are in conflict given that Mr. Falcaro claimed to be traveling fifteen (15) miles per hour at most and Plaintiff-Respondent believed him to be traveling at thirty-five (35) miles per hour. The credibility of the parties needs to be determined by a jury, not by a court on a motion for summary judgment. Thus, even assuming, in arguendo, that a reckless standard applied, there are issues of fact that preclude dismissal of this action. As such, this action was properly reinstated by the First Department, Appellate Division and the reinstatement should, respectfully, be affirmed. Conclusion In the present matter, the Defendant-Appellants are not entitled to a reckless standard ofliability, as no exemption from the ordinary negligence standard applied to the operation oftheir New York City street sweeper at the time ofthe subject rear- end collision. Under an ordinary negligence standard, Plaintiff-Respondent is entitled to summary judgment. Even, in arguendo, if issues of fact are found under a negligence standard, or if a reckless standard is applied, dismissal is not warranted. Based on the undisputed facts and the relevant law, it is respectfully submitted that this Court affirm the Decision of the Appellate Division, First Department, entered on April 1,2014, in so far as it reinstated Plaintiff-Respondent's complaint; grant summary judgment against Defendant-Appellants; and such other and further relief as this Court deems just and proper. Dated: New York, New York November 13,2014 Re~tfullysubmitted, By: lV~-~ 'UllUSTINA MARK, ESQ. BLOCK O'TOOLE&MURPHY, LLP Attorneys for Plaintiff-Respondent ALEX IRRIZARRY DELEON 43