Alex Irrizarry Deleon, Respondent,v.New York City Sanitation Department, et al., Appellants.BriefN.Y.April 29, 2015REPRODUCED ON RECYCLED PAPER Supreme Court, Bronx County To be argued by: Index No 300612/2011 ELIZABETH I. FREEDMAN (10 minutes requested) 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. REPLY BRIEF FOR DEFENDANTS-APPELLANTS ZACHARY W. CARTER, Corporation Counsel City of New York, Attorney for Defendants- Appellants, 100 Church Street, New York, New York 10007 (212) 356-0836 or -2502 efreedma@law.nyc.gov RICHARD DEARING FRANCIS F. CAPUTO ELIZABETH I. FREEDMAN of Counsel December 11, 2014 APL-2014-00190 TABLE OF CONTENTS Page TABLE OF AUTHORITIES.......................................... ii PRELIMINARY STATEMENT.......................................... 1 REPLY ARGUMENT POINT I THERE IS NO SOUND BASIS FOR READING THE CITY'S 2007 RULE TO HAVE EXCLUDED STREET SWEEPERS WHEN THE COUNTERPART STATE STATUTE PLAINLY COVERED THEM........................................2 A. Deleon Disregards the Plain Text of the City's 2007 Rule, Which Incorporated VTL § 1103(b) in Full...........................2 B. Deleon's Waiver Arguments Are Meritless...............................6 C. The Record Contradicts Deleon's Alternative Argument That Falcaro Was Not Engaged in Street Sweeping at the Time of the Collision.......................9 POINT II THE RECORD DOES NOT SUPPORT DELEON'S CONTENTION THAT FALCARO ACTED RECKLESSLY, OR EVEN NEGLIGENTLY...........................11 CONCLUSION.................................................... 15 ii TABLE OF AUTHORITIES Cases Pages Curella v. Town of Amherst, 77 A.D.3d 1301 (4th Dept., 2010) ........................... 13 Faria v. City of Yonkers, 84 A.D.3d 1306 (2d Dept., 2011) ............................ 10 Frezzell v. City of New York, ___ N.Y.3d ___, 2014 N.Y. Lexis 3191 (Nov. 20, 2014) ............... 11, 13, 14 Kilduff v. Rochester City School District, ___ N.Y.3d ___, 2014 N.Y. Lexis 3190 (Nov. 20, 2014) ........................ 5 Lobello v. Town of Brookhaven, 66 A.D.3d 646 (2 Dept., 2009) .............................. 10 Riley v. County of Broome, 95 N.Y.2d 455 (2000) ........................ 2, 3, 5, 7, 8, 10 Saarinen v. Kerr, 84 N.Y.2d 494 (1994) ....................................... 11 Small v. City of New York, 54 A.D.3d 747 (2d Dept., 2008) ............................. 10 Somersall v. New York Telephone Company, 74 A.D.2d 302 (1st Dept., 1980), rev’d on other grounds, 52 N.Y.2d 157 (1981) ............. 6, 8 Statutes and Rules New York Vehicle and Traffic Law § 1103................... passim 34 Rules of the City of New York § 4-02................... passim PRELIMINARY STATEMENT In our opening brief, defendants established that the Rules of the City of New York in effect at the time of this incident (and still today) expressly incorporated and cross- referenced New York Vehicle and Traffic Law (VTL) § 1103(b) and thus established that a recklessness standard of care applied to defendant Falcaro’s highway work. We also showed that defendants are entitled to summary judgment under the applicable recklessness standard. The responding brief of plaintiff Alex Irrizarry Deleon offers nothing to call these points into question. Deleon’s position hinges on the unsupportable contention that 34 RCNY § 4-02(d)(1)(iv) did not apply to street sweeping at the relevant time, though street sweeping was and is undisputedly covered by the counterpart state statute that the City rule incorporated essentially verbatim. Deleon cannot square this contention with basic rules of statutory construction. Nor does he identify any statement or other evidence suggesting that the City intended to carve out from its provision an entire category of highway vehicles and workers to which the state statute plainly applies. 2 Deleon is also mistaken in arguing that the record here raises a fact issue on the question of recklessness. To the contrary, the record contains no evidence that Falcaro acted recklessly, and thus defendants are entitled to summary judgment. REPLY ARGUMENT POINT I THERE IS NO SOUND BASIS FOR READING THE CITY’S 2007 RULE TO HAVE EXCLUDED STREET SWEEPERS WHEN THE COUNTERPART STATE STATUTE PLAINLY COVERED THEM. A. Deleon Disregards the Plain Text of the City’s 2007 Rule, Which Incorporated VTL § 1103(b) in Full. Deleon does not dispute that, outside of New York City, street sweeping has always qualified as highway work and thus is subject to a recklessness standard of care under VTL § 1103(b). Nor could Deleon dispute this: in its 2000 decision in Riley v. County of Broome, this Court squarely held that street sweeping (and snow plowing) is highway work within the meaning of § 1103(b). See 95 N.Y.2d 455, 462-63, 465 (2000). Deleon’s observation that Riley did not address street sweeping in New York City fails to account for the plain language of 34 RCNY § 4-02(d)(1)(iv), as adopted in 2007. The City’s 2007 rule expressly incorporated the pertinent language of VTL § 1103(b), twice cross-referenced VTL § 1103(b), and further emphasized that VTL § 1103(b) applied within New York 3 City “to any operator of a motor vehicle or other equipment while actually engaged in work on a highway.” (Emphasis added). Thus, regardless of whether Riley would apply in New York City by its own force, when the Department of Transportation (DOT) expressly incorporated VTL § 1103(b) into local law in 2007, it incorporated the Court’s definitive construction of that statute into local law as well. At a minimum, the City’s rule should not be construed differently from the essentially identical state statute absent very clear evidence that the different construction was intended. Deleon has identified no such clear evidence. As an initial matter, he has never offered any plausible reason why DOT would have wanted to exclude street sweepers from the protections of VTL § 1103(b), while otherwise incorporating the statute into local law. The recklessness standard of VTL § 1103(b) reflects a judgment that the public interest is best served by requiring a higher showing of fault before imposing liability for highway work performed for the public’s benefit. Nothing suggests that DOT ever concluded that street sweepers were for some reason uniquely undeserving of that protection. Deleon, like the Appellate Division majority, incorrectly relies on a separate provision in the City’s rules at the time of the incident that absolutely privileged street sweepers, snowplows, and salt spreaders to make turns and 4 proceed in directions of travel as ordered by superiors (but subject to contrary direction by police officers). Nothing indicates that this other provision, 34 RCNY § 4- 02(d)(1)(iii)(A), as it existed at the time of this accident, was intended to limit the degree to which § 4-02(d)(1)(iv) incorporated VTL § 1103(b). The provision privileging street sweepers, plows, and spreaders as to turns and directions of travel predated the 2007 amendments to § 4-02(d)(1)(iv). The most reasonable conclusion is that it simply did not occur to DOT to delete the other provision at the time of the 2007 amendments, even if those amendments made the provision largely vestigial. Deleon attributes too much significance to the agency’s inaction in arguing that DOT’s failure to delete the former subdivision (iii)(A) in 2007 shows an intent to carve a category of highway work out from subdivision (iv)’s incorporation of VTL § 1103(b). Moreover, Deleon does not dispute the demonstration in our opening brief (Defs. Br. at 18-20), and in the dissenting opinion below (263-64),1 that applying 34 RCNY § 4-02(d)(1)(iv) 1 Unless otherwise indicated, numbers in parentheses refer to pages in the Record on Appeal With Additional Papers to the Court of Appeals. Numbers in parentheses preceded by the letter “A” refer to pages in the Addendum annexed to defendants’ opening appellants’ brief. 5 to street sweepers, plows, and spreaders would not have rendered subdivision (iii)(A) superfluous. Deleon is also mistaken in arguing that the 2013 amendments to 34 RCNY § 4-02, which repealed the former subdivision (iii)(A) (see A7, A10-11), overcome the above points. The 2013 amendments did not alter the text of subdivision (iv) in any relevant way. Deleon relies primarily on statements in the explanatory notes to the 2013 amendments. To be sure, those explanatory notes lend some support to Deleon. But those notes cannot retroactively override the plain text of VTL § 1103(b), as it read at the time of the incident here, and continues to read now. “[I]t is the language of the statute that is the best evidence of the Legislature’s intent.” Kilduff v. Rochester City School District, ___ N.Y.3d ___, 2014 N.Y. Lexis 3190, at *8 (Nov. 20, 2014), citing Riley v. County of Broome, 95 N.Y.2d at 463. Nor did the 2013 explanatory notes in any way suggest that, at the time of the 2007 amendments to 34 RCNY § 4-02(d)(1)(iv), DOT intended to exclude street sweepers, plows, and spreaders from the amendments’ incorporation of VTL § 1103(b). Simply put, the 2013 explanatory notes are not a sufficient basis to read the 2007 version of 34 RCNY § 4- 02(d)(1)(iv) more narrowly than the state statute that the provision expressly incorporated and cross-referenced. 6 B. Deleon’s Waiver Arguments are Meritless. Deleon raises a number of further arguments, but none has any merit. He cites this Court’s ruling in Somersall v. New York Telephone Company, 52 N.Y.2d 157, 163 (1981), to proclaim that VTL § 1103 does not apply in the City of New York when superseded by local City rule. But Deleon also concedes that Somersall did not address the City rule, 34 RCNY § 4-02(d)(1), that is in issue here (Deleon Br. at 14). As we have also previously pointed out (Defs. Br. at 14 n.4), Somersall long pre-dated the 2007 amendments to 34 RCNY § 4-02 that made absolutely clear that the standards for highway work established by VTL § 1103(b) are incorporated into the City’s rules. Moreover, Somersall did not involve highway work or the legal standards applicable to such work at all. Rather, the case involved hazard vehicles that were not engaged in highway work, and presented the question, not raised here, of whether the separate provision in VTL § 1103(b) that exempts hazard vehicles from standing, stopping, and parking rules applied in New York City. Deleon incorrectly asserts that defendants “have waived these arguments” concerning Somersall, because they failed to address them in the lower courts (Deleon Br. at 14 n.2). Defendants certainly have not waived their basic legal 7 arguments, expressly asserted in every court herein, that the reckless disregard standard set forth in VTL § 1103(b) applies to the street sweeper involved in this collision. In fact, that was the principal issue in the summary judgment motion and subsequent appeal (170-79, 228-40, 249-53). Deleon does not and cannot dispute that defendants expressly relied on this Court’s decision in Riley v. County of Broome, in support of their summary judgment motion, and in their respondents’ brief filed in the Appellate division (174-76, 250-51; Defs. AD1st Br. at 13-18). Riley was also cited in the Bronx County Supreme Court’s decision (5-6), and in the Appellate Division’s majority and dissenting opinions (260, 263-64). In Riley, this Court expressly held that all vehicles “actually engaged in work on a highway,” just like all emergency vehicles engaged in emergency operations, are exempt from the “rules of the road.” Riley, 95 N.Y.2d at 462-63. Because the street sweeper in Riley was engaged in work on a highway, i.e., cleaning the street, VTL § 1103(b) exempted that vehicle from the “rules of the road.” Id. at 463. This Court pointed out that the Vehicle and Traffic Law does not state that “hazard vehicles” are a distinct class from “work vehicles,” nor does the statute deny to “hazard vehicles” the special protection afforded to all vehicles actually engaged in road work (like the street sweeper involved here). Id. at 463. This Court in Riley 8 then expressly disavowed the reasoning in Somersall v. New York Telephone Company, 74 A.D.2d 302, 307-09 (1st Dept., 1980), rev’d on other grounds, 52 N.Y.2d 157 (1981), to the extent it held otherwise. See Riley, 95 N.Y.2d at 463 n.4. Defendants did not waive arguments about the import of Riley, and are simply reiterating here what this Court already held in that case, including the Court’s disavowal of the Appellate Division’s decision in Somersall, to the extent its holding is not aligned with Riley. This purely legal argument was not at all waived. In fact, defendants expressly distinguished Somersall as inapplicable here, in their reply affirmation in support of their summary judgment motion in the trial court (249). Deleon also incorrectly asserts that defendants never argued in the lower courts that 34 RCNY § 4-02(d)(1)(iv) adopted the recklessness standard of VTL § 1103(b), and thus somehow failed to preserve that argument for this Court’s review (Deleon Br. at 16-17). To the contrary, however, defendants expressly argued in their reply affirmation in Supreme Court that § 4-02 implemented VTL § 1103, referred to it, and made § 1103 applicable to City highway workers and vehicles (250). Defendants also made this argument at length in their brief in the First Department (Defs. AD1st Br. at 21-28). Deleon’s waiver arguments are thus meritless. 9 C. The Record Contradicts Deleon’s Alternative Argument That Falcaro Was Not Engaged in Street Sweeping at the Time of the Collision. In the alternative to his arguments about the proper construction of 34 RCNY § 4-02, Deleon also argues that the sweeper in this case was not “actually engaged” in street sweeping at the time of the collision (Deleon Br. at 34-36), and thus would not be entitled to the recklessness standard of care even if that standard applied to street sweepers in New York City at the time of the incident. But the record does not support this argument, and indeed contradicts it. The record demonstrates that Falcaro was “engaged in work on a highway” within the meaning of the statute, since he was actively sweeping or cleaning the street (118-20). Falcaro testified that the accident happened while he was driving to his sweeping route (118). He testified that “you’re supposed to sweep to your route,” so that as part of driving to his route, he was actually doing street sweeping in the area where the accident occurred (118). Falcaro also testified that he “swept out the door once [he] hit the street,” and that “[he] was sweeping towards the right,” keeping his broom truck to the right-hand side of the road (118-19). And he further testified that he engaged in street sweeping from the moment he exited the Department of Sanitation garage on 176th Street, until the time 10 the accident occurred (117-20). Deleon submitted no contrary evidence, and thus failed to raise any fact issue on this point. Because Falcaro was engaged in work on a highway, his conduct falls under the reckless disregard standard in VTL § 1103(b), as construed by Riley. See also Faria v. City of Yonkers, 84 A.D.3d 1306, 1307 (2d Dept., 2011) (street sweeper subject to reckless disregard standard under VTL § 1103(b)); Small v. City of New York, 54 A.D.3d 747 (2d Dept., 2008) (same, as to City of New York’s front-end loader removing snow at city bus stop); Lobello v. Town of Brookhaven, 66 A.D.3d 646, 647 (2d Dept., 2009) (same, as to town dump truck spreading salt and sand). Deleon ineffectually attempts to distinguish Small v. City of New York by pointing out that it involved a front-end loader, a “non-sweeper vehicle,” unlike the street sweeper in this case (Deleon Br. at 15). Both the front-end loader removing snow from a bus stop in Small, and the street sweeper sweeping the road in this case, are “hazard vehicles” operating in the City of New York during the relevant time period, prior to the 2013 amendment to 34 RCNY § 4-02, and to which VTL § 1103(b) applies. 11 POINT II THE RECORD DOES NOT SUPPORT DELEON’S CONTENTION THAT FALCARO ACTED RECKLESSLY, OR EVEN NEGLIGENTLY. Deleon argues that if a recklessness standard of care applies, issues of fact nonetheless preclude summary judgment (Deleon Br. at 39-42). He also contends that if an ordinary negligence standard applies, defendants are liable as a matter of law (Deleon Br. at 37-38). But Deleon’s arguments are not supported by the record: defendants demonstrated their entitlement to summary judgment under the applicable recklessness standard or even under an ordinary negligence standard. This Court recently reiterated that the reckless disregard standard is a demanding one, requiring evidenced that the defendant intentionally acted in an unreasonable manner, in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and with conscious indifference to the outcome. See Frezzell v. City of New York, ___ N.Y.3d ___, 2014 N.Y. Lexis 3191, at *5 (Nov. 20, 2014), citing Saarinen v. Kerr, 84 N.Y.2d 494, 501 (1994). This standard affords highway workers and emergency personnel a “qualified privilege” in carrying out their public duties. Id. 12 As a matter of law, defendants’ evidence establishes that Falcaro did not act recklessly, and Deleon offered nothing raising a fact issue on the point. Even the Appellate Division majority did not take issue with the trial court’s conclusion that defendants would be entitled to summary judgment under a recklessness standard (5-6, 261-62). Although Deleon tries to paint this incident here as a classic rear-end collision, quite the contrary is true. Deleon conceded in his deposition that he was turning his jeep and pulling into a different lane of traffic when the collision occurred, so that he was not traveling straight within a lane or stopped or stopping at the time of the collision (51, 57-59). Moreover, the undisputed evidence demonstrates that Falcaro, as he was sweeping the street, continually kept his focus on Deleon’s jeep while it was ahead of him (118-20). Nothing in the record suggests that Falcaro acted recklessly. Although Deleon’s and Falcaro’s accounts of the collision differed, none of those differences is material to the recklessness inquiry. Regardless of whether Deleon was turning his jeep to the left and pulling away from the curb, as he testified (52, 58-59), or whether Deleon precipitously maneuvered the jeep to the right, back toward the curb, as Falcaro testified (121-22, 125-27), there is no triable issue of 13 fact under a recklessness standard, or even under an ordinary negligence standard of liability. Even assuming that Deleon moved his jeep to the left, and pulled away from the curb, as he testified, then he maneuvered his vehicle into the path of the oncoming street sweeper, which he admittedly saw approaching from behind in his rear view mirror, and failed to avoid the collision (52-58). Since under his own version of events, Deleon failed to yield to the street sweeper that was engaged in highway maintenance, there is no evidence in the record of reckless conduct, or even any negligence, by Falcaro, as a matter of law. See, e.g., Frezzell, 2014 N.Y. Lexis 3191, at *7; Curella v. Town of Amherst, 77 A.D.3d 1301, 1301-02 (4th Dept., 2010). This Court’s recent decision in Frezzell highlights the deficiencies in Deleon’s assertions about Falcaro’s speed of travel, which were unsupported by any credible evidence (52, 57). Falcaro testified that he could not have been traveling more than 15 miles per hour and that the street sweepers, with their brooms, “don’t go very fast” (123). Deleon testified generally that he saw Falcaro “speeding” and driving “too fast” (52, 57). He purported to estimate that Falcaro was traveling “[a]bout thirty-five” miles per hour (57), but explained the estimate merely by saying that “the truck (street sweeper) can only do forty” (57), which is not any basis on which to estimate 14 the vehicle’s actual speed on the day in question. In Frezzell, this Court rejected comparable evidence as insufficient to raise a fact issue on the question of recklessness. Id., 2014 N.Y. Lexis 3191, at *7 (holding that plaintiff’s allegation that defendant “was traveling at a ‘high rate of speed,’” was insufficient to raise a fact issue, “in light of [plaintiff’s] admission that he could not estimate [defendant]’s speed or what [his] vehicle was doing”). Under Frezzell, the evidence as to preventive measures taken by Falcaro provides a further ground to grant summary judgment to defendants. Falcaro testified that he tried to turn the street sweeper to the left, the only place he could go other than the sidewalk, to try to prevent the collision (128). Falcaro further testified that he did what he could under the circumstances to prevent the accident (121-22). In Frezzell, the Court held that the driver and passenger were entitled to summary judgment under a recklessness standard, where they testified as to the preventive measures the driver took to avoid the collision, including braking and veering to the side of the street, and plaintiff offered no proof to contradict these assertions. See 2014 N.Y. Lexis 3191, at *7. That reasoning applies equally to the record in this case. In sum, the record in this case contains no evidence of intentional conduct by Falcaro committed in disregard of a 15 known or obvious risk of highly probable harm. Defendants are entitled to summary judgment and dismissal of Deleon’s complaint as a matter of law, under the applicable recklessness standard of liability, or even under an ordinary negligence standard. CONCLUSION This Court should reverse the Appellate Division, First Department’s decision and order, and direct the grant of summary judgment to defendants, dismissing Deleon’s complaint as a matter of law. Dated: New York, New York December 11, 2014 Respectfully submitted, ZACHARY W. CARTER Corporation Counsel Attorney for Defendants-Appellants _________________________________ ELIZABETH I. FREEDMAN Assistant Corporation Counsel RICHARD DEARING FRANCIS F. CAPUTO ELIZABETH I. FREEDMAN of Counsel