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. BRIEF FOR DEFENDANTS-APPELLANTS ZACHARY W. CARTER Corporation Counsel of the 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 October 1, 2014 APL-2014-00190 TABLE OF CONTENTS Page TABLE OF AUTHORITIES..........................................iii PRELIMINARY STATEMENT...........................................1 QUESTIONS PRESENTED.............................................2 STATEMENT OF THE CASE...........................................3 A. Statutory Background...................................3 1. The State Vehicle and Traffic Law.................3 2. New York City Rules...............................4 B. The Summary Judgment Record in This Suit...............6 C. Supreme Court's Grant of Summary Judgment..............7 D. The Reversal and Remand by the First Department........8 STATEMENT OF JURISDICTION AND REVIEWABILITY....................10 ARGUMENT POINT I A RECKLESS STANDARD OF CARE APPLIES TO THIS CASE UNDER STATE AND LOCAL LAW...................................11 A. Riley Makes Clear That The Recklessness Standard Established by VTL § 1103(b) Applies to Street Sweepers While They are Engaged in Work on a Highway.........................................11 B. The City’s Rules Mirror and Expressly Incorporate VTL § 1103(b), Thus Establishing a Recklessness Standard Under Local Law as Well.....................................13 ii C. The Appellate Division Majority Offered No Persuasive Reason For Carving Out Street Sweepers Engaged in Highway Work From the Recklessness Standard of Care............................................17 POINT II DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT UNDER THE APPLICABLE RECKLESSNESS STANDARD OF CARE...................23 CONCLUSION.....................................................28 ADDENDUM.......................................................A1 New York Vehicle and Traffic Law § 1103............................................A2 34 RCNY § 4-02 (2007)...........................A4 34 RCNY § 4-02 (2013)...........................A9 iii TABLE OF AUTHORITIES Cases Pages Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986) ........................................ 23 Curella v. Town of Amherst, 77 A.D.3d 1301 (4th Dept., 2010)............................. 27 Department of Housing and Urban Development v. Rucker, 535 U.S. 125 (2002) ......................................... 16 Faria v. City of Yonkers, 84 A.D.3d 1306 (2d Dept., 2011) ............................ 13 Farese v. Town of Carmel, 296 A.D.2d 436 (2d Dept., 2002) ............................ 24 Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065 (1979) ................. 23 Levine v. GBE Contracting Corp., 2 A.D.3d 596 (2d Dept., 2003) .............................. 24 Lobello v. Town of Brookhaven, 66 A.D.3d 646 (2d Dept., 2009) ......................... 13, 27 Louizov v. City of New York, 2012 N.Y. Misc. Lexis 1720 (Sup. Ct. Richmond County 2012) ............................ 22 Marx v. General Revenue Corporation, ___ U.S. ___, 133 S. Ct. 1166 (2013) ...................... 18 Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) ........................................ 16 Riley v. County of Broome, 95 N.Y.2d 455 (2000) ................................... passim Saarinen v. Kerr, 84 N.Y.2d 494 (1994) ....................................... 24 Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.3d 395 (1951) ........................................ 23 Small v. City of New York, 54 A.D.3d 747 (2d Dept., 2008) ..................... 13, 22, 27 Cases Pages iv Somersall v. New York Telephone Company, 52 N.Y.2d 157 (1981) ................................... 14, 20 Somersall v. New York Telephone Company, 74 A.D.2d 302 (1st Dept., 1980), rev'd on other grounds, 52 N.Y.2d 157 (1980) ............... 20 Zuckerman v. City of New York, 49 N.Y.2d 557 (1980) ....................................... 23 Statutes, Rules and Regulations Civil Practice Law and Rules § 5602........................... 11 Civil Practice Law and Rules § 5713........................... 10 Vehicle and Traffic Law § 1100................................. 3 Vehicle and Traffic Law § 1102................................ 17 Vehicle and Traffic Law § 1103............................ passim Vehicle and Traffic Law § 1642................................. 4 34 Rules of the City of New York § 4-02................... passim 34 Rules of the City of New York § 4-15........................ 4 PRELIMINARY STATEMENT Plaintiff Alex Deleon has sued defendants New York City Sanitation Department, the City of New York, and Robert P. Falcaro, for damages allegedly caused in an October 2010 collision between his jeep and a Sanitation Department street sweeper that was driven by Falcaro and actively engaged in sweeping a city street. The Appellate Division, First Department, with one justice dissenting, reversed a grant of summary judgment in favor of defendants. The First Department has certified its decision for this Court’s review. The principal question in this appeal is whether the standard of care applicable to defendants’ conduct here is recklessness or ordinary negligence. New York Vehicle and Traffic Law (VTL) § 1103(b) establishes a recklessness standard of care for government workers and vehicles engaged in highway work, and a provision in the Rules of the City of New York (RCNY) expressly and fully incorporates that standard from VTL § 1103(b) as to workers and vehicles engaged in highway work in the City. The Appellate Division majority incorrectly held that a separate provision then in effect in the City’s rules of the incident created an implicit carve-out from the recklessness standard for street sweepers. The majority overlooked the 2 numerous ways in which the City’s rules made clear that VTL § 1103(b)’s recklessness standard for highway workers and vehicles was intended to be incorporated in its full scope, as to all workers and vehicles engaged in highway work. The Court also mistakenly concluded that its reading was necessary to avoid rendering some provisions in the City’s rules superfluous, when, as the dissenting justice explained, all relevant provisions can be given effect under the City’s interpretation. Nor was the majority correct to rely on a subsequent amendment to the City’s rules as a purported basis for ignoring the clear import of the text in effect at the time of the incident here. Thus, because the Sanitation Department street sweeper driven by defendant Falcaro was actively engaged in work on a highway, the recklessness standard applies. Defendants are entitled to summary judgment under the recklessness standard, because there is no probative evidence in the record suggesting that defendant Falcaro acted in reckless disregard of a known or obvious risk of highly probable harm. QUESTIONS PRESENTED 1. Whether the reckless disregard standard of care set forth in VTL § 1103(b), and incorporated essentially verbatim in 34 RCNY § 4-02(d)(i)(iv), applies to the Sanitation Department street sweeper engaged in highway work here. 3 2. Whether the municipal defendants are entitled to summary judgment under the applicable recklessness standard of care, because, as a matter of law, there is no evidence sufficient to establish recklessness, and Deleon failed to raise any triable issue of fact as to whether Falcaro operated the street sweeper in reckless disregard for the safety of others. STATEMENT OF THE CASE A. Statutory Background 1. The State Vehicle and Traffic Law Title VII of the New York Vehicle and Traffic Law (VTL), § 1100 et seq., establishes a set of state traffic regulations known as the “rules of the road.” Section 1103(b) of the VTL exempts government vehicles and workers engaged in highway work from these rules of the road (save for the rules governing driving while impaired). This statutory exemption applies to “persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway.” Section 1103(b) further provides that it does not “protect [highway workers] from the consequences of their reckless disregard for the safety of others,” thereby establishing a recklessness standard of care for government highway work. In Riley v. County of Broome, this Court held that the recklessness standard of care set forth in § 1103(b) fully applies to “hazard vehicles,” a category of vehicles that 4 includes street sweepers, while such vehicles are engaged in work on a highway. Id., 95 N.Y.2d 455, 462 (2000). The Court rejected the contention that a separate provision in the statute specifically exempting “hazard vehicles” engaged in “hazardous operations” from rules governing stopping, standing, and parking rendered inapplicable the general exemption for highway workers and the related recklessness standard of care. Id. at 463, 465. This Court held that § 1103(b)’s provisions governing highway work does not distinguish between categories of vehicles performing highway work; rather, all government vehicles and workers are subject to a recklessness standard while actually engaged in work on a highway. Id. at 465. 2. New York City Rules Vehicle and Traffic Law § 1642 authorizes the City of New York to establish additional or different rules of the road and even to supersede the state rules of the road. The City has thus established numerous local “rules of the road.” See 34 RCNY §§ 4-01 to 4-15. The City has also superseded state rules of the road in several areas, including stopping and double- parking, pedestrian-control signal indications, yield signs, and rules pertaining to pedestrians, bicyclists and skaters. See 34 RCNY § 4-02(e). The Rules of the City of New York were amended in 2007 to make clear that the rules incorporate the standards 5 established by VTL § 1103(b) as to government vehicles engaged in highway work. Thus, 34 RCNY § 4-02(d)(1)(iv) exempts “any person or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway” from the local “rules of the road,” and establishes a recklessness standard for such workers and vehicles as a matter of local law. As amended in 2007, the text of 34 RCNY § 4-02(d)(1)(iv) is essentially identical to the text of VTL § 1103(b), and the local provision twice expressly references the VTL provision. See 34 RCNY § 4-02(d)(1)(iv). At the time of the incident at issue here, local rules also included a provision, originally adopted in 1992, that affirmatively authorized Department of Sanitation or Department of Transportation snow plows, sand spreaders, and street sweepers, while engaged in their duties and acting under the orders of a superior, to make such turns and proceed in such directions as were necessary to complete their duties. See former 34 RCNY § 4-02(d)(1)(iii)(A) (eff. 2007). This provision was deleted from the City’s rules in 2013. See current 34 RCNY § 4-02(d)(1)(iii) (eff. 2013), and Statement of Basis and Purpose in City Record Mar. 4, 2013.1 1 The text of the relevant statute and rules, i.e., VTL § 1103, and 34 RCNY § 4-02(d)(1) (eff. 2007 and 2013) is reproduced in the Addendum to this brief, at pages A1-A14. 6 B. The Summary Judgment Record in This Suit This personal injury suit involves an October 19, 2010 collision between Deleon’s jeep and a city-owned street sweeper operated by defendant Robert P. Falcaro (10, 21-31, 170-71).2 It is undisputed that the collision occurred on 176th Street in the Bronx, near an intersection with Marmion Avenue. The parties testified as follows about the incident. Deleon testified that the collision occurred after he began to pull leftward onto the roadway of 176th Street, with his left turn signal activated, after he had been parked on the right curb of the street for about five minutes (51-59). He testified that he saw the street sweeper driven by Falcaro approaching from behind at an estimated speed of 35 to 40 miles per hour (58-59). According to Deleon, as he was moving his jeep to the left, the street sweeper collided with him (52, 57- 58, 61). Falcaro, in his deposition, testified that, as he was sweeping the street in the right lane of 176th Street,3 he saw Deleon’s jeep make a “pretty sudden move” from the middle lane 2 Numbers in parentheses refer to pages in the Record on Appeal With Additional Papers to the Court of Appeals. 3 Although 176th Street was not on Falcaro’s assigned street sweeping route, Falcaro explained that he was engaged in sweeping 176th Street after exiting the Sanitation Department garage there, because his job required him to sweep while proceeding to his assigned route (113-14, 118-19). 7 of the street towards the right curb (125-27). According to Falcaro, he tried to maneuver his street sweeper to the left to avoid the jeep, but he was unsuccessful, and the right front side of his street sweeper hit the rear passenger side of the jeep (128). Photographs taken by Deleon’s wife at the scene show damage to the rear, back bumper, and rear passenger side of Deleon’s jeep (62, 67, 172, 184-87). Additional photographs in the record show damage to the right front fender and bumper of the sweeper driven by Falcaro (133-34, 174, 188-225). C. Supreme Court’s Grant of Summary Judgment Supreme Court, Bronx County (Schachner, J.S.C.) granted summary judgment to the municipal defendants (4-6). The Supreme Court ruled that, as City defendants’ street sweeper was a “hazard vehicle” engaged in street sweeping at the time of the accident, Deleon was required to establish under VTL § 1103(b) that Falcaro operated the sweeper recklessly (5-6). The Court held that Deleon failed to raise an issue of fact as to recklessness, in that he submitted no credible evidence showing that Falcaro was speeding, ignored a traffic control device, or recklessly failed to observe plaintiff’s vehicle (6). The Court noted that plaintiff’s vehicle “was not stationary when it was struck, as this was not a simple hit in the rear” (6). Supreme Court observed that the photographs in 8 the record indicated that damage to the right front fender and bumper of the sweeper, and right rear of plaintiff’s jeep, supporting the conclusion that “plaintiff’s vehicle moved seconds before impact and . . . the street sweeper tried to avoid the accident by moving to the left” (6). D. The Reversal and Remand by the First Department The Appellate Division, First Department, with one Justice dissenting, modified the Supreme Court’s order, on the law, and denied defendants’ motion for summary judgment (260- 65). The First Department concluded that VTL § 1103(b) did not apply to the street-sweeping vehicle at issue, and held that an ordinary negligence standard, rather than recklessness standard, applied to this case. The Appellate Division majority held that in 2010, when the collision at issue occurred, VTL § 1103(b) was effectively superseded as relevant here by 34 RCNY § 4- 02(d)(1)(iii)(A), which the Court held exempted street sweepers from compliance with traffic rules only, to the limited extent of making such turns and otherwise proceeding in the direction necessary to perform their operations (261). The Court found that, “[w]hile subparagraph (iv) contained a broader exception, expressly invoking Vehicle and Traffic Law § 1103, we find that subparagraph (iv) did not include street sweepers because that would have rendered subparagraph (iii) redundant and 9 meaningless” (261). The Court cited the “Statement of Basis and Purpose” for the rule’s 2013 amendment, as “now” subjecting these types of vehicles to the subparagraph (iv) exemption, in concluding “that [such vehicles] were not so subject before then” (261). The majority further ruled that, applying the ordinary negligence standard, plaintiff had failed to establish prima facie that defendants’ negligence proximately caused the accident (261-62). Citing record testimony and photographs, the Court found factual issues regarding plaintiff’s own negligence, including whether plaintiff’s conduct was the sole proximate cause of the accident. The Court observed that “this was not a standard rear-end collision for which defendants have offered no non-negligent explanation” (262). The majority thus remanded the case for a trial. Justice DeGrasse dissented. He would have held that VTL § 1103(b)’s reckless disregard standard applied to the case, and that defendants were entitled to summary judgment under that standard of care, because there was no evidence that Falcaro disregarded a known or obvious risk of highly probable harm (263, 265). Justice DeGrasse reasoned that the recklessness standard applied because 34 RCNY § 4-02(d)(1)(iv), as it existed at the time of the 2010 accident, incorporated VTL § 1103 by reference (263). 10 The dissenting justice thus pointed out that “34 RCNY § 4-02(d)(1((iv) specifically adopted and provided for the application of the reckless disregard standard set forth in Vehicle and Traffic Law § 1103 to highway workers,” and observed that no plausible construction of 34 RCNY § 4-02 could take Falcaro out of the category of “highway worker” within the meaning of VTL § 1103 (263). Justice DeGrasse found “no basis” for the majority’s conclusion that this construction rendered § 4-02(d)(1((iii) superfluous and meaningless, observing that whereas subdivision (iv) adopted a reckless disregard standard in general, subdivision (iii) affirmatively authorized specific conduct by street sweepers and other defined vehicles, as to turning and direction of travel, setting forth no standard of care (264). STATEMENT OF JURISDICTION AND REVIEWABILITY The Appellate Division, First Department granted the municipal defendants’ motion for leave to appeal to this Court pursuant to CPLR § 5713, on a certified question of law, decisive of the correctness of the Appellate Division’s determination (258). This Court has jurisdiction to consider and decide this appeal on a question of law from an Appellate Division order that does not finally determine the action, upon the Appellate Division’s order granting leave to appeal (see 11 CPLR § 5602(b)(1)). The issues raised in this appeal have been preserved for the Court’s review and determination (34, 37, 174- 78, 229-37, 249-53). ARGUMENT POINT I A RECKLESSNESS STANDARD OF CARE APPLIES TO THIS CASE UNDER STATE AND LOCAL LAW. The Appellate Division majority incorrectly held that the recklessness standard of care established for highway workers by VTL § 1103(b), and expressly incorporated and adopted into local law by 34 RCNY § 4-02(d)(1)(iv), does not apply to this case. Its decision is contrary to this Court’s decision in Riley v. County of Broome, 95 N.Y.2d 455 (2000), and misconstrues the applicable provisions of New York City rules in effect at the time of the accident. A. Riley Makes Clear That The Recklessness Standard Established by VTL § 1103(b) Applies to Street Sweepers While They Are Engaged in Work on a Highway. As noted above, VTL § 1103(b) expressly exempts highway workers and vehicles – “persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway” – from the state rules of the road and makes highway workers subject to liability only where they display reckless disregard for the safety of others. In Riley v. County of Broome, 95 N.Y.2d at 467-68, this Court made clear that any vehicles 12 actually engaged in road work, including street sweepers and snowplows, are subject to a recklessness standard of care under VTL § 1103(b). Id. The Court rejected the argument that another clause in § 1103(b), exempting “hazard vehicles,” including sweepers and snowplows, from state rules governing stopping, standing, and parking, rendered the broader protections in the rest of VTL § 1103(b) inapplicable to such vehicles. Examining the legislative history of § 1103(b), the Court concluded that the statute reflects a “legislative intention to create a broad exemption from the rules of the road for all vehicles engaged in highway construction, maintenance, or repair, regardless of their classification.” Id. at 464. The Court held that the application of that broad exemption turns on the nature of the work being performed (i.e., construction, repair, maintenance or similar work), and not on the nature of the vehicle performing the work. Id. The Court thus concluded that a 1970 amendment to the VTL, creating a new class of “hazard vehicles” and amending § 1103(b) to exempt hazard vehicles from state standing, stopping and parking regulations, “was not intended to curtail the exemption [otherwise established by § 1103(b)] for any vehicles – including ‘hazard vehicles’ – engaged in work on a highway.” Id. at 465. 13 Here, Falcaro drove a street sweeper, or “mechanical broom” (92, 106), and was “engaged in work on a highway” at the time of the collision, since he was actively sweeping or cleaning the street (188-20). Falcaro testified that he engaged in street sweeping from the moment he existed the garage until the time the accident occurred (118-20). 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. Accord, Faria v. City of Yonkers, 84 A.D.3d 1306, 1307 (2d Dept., 2011) (holding that street sweeper was subject to the 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 snow-removal vehicle); Lobello v. Town of Brookhaven, 66 A.D.3d 646, 647 (2d Dept., 2009) (same, as to town dump truck spreading salt and sand). B. The City’s Rules Mirror and Expressly Incorporate VTL § 1103(b), Thus Establishing a Recklessness Standard Under Local Law as Well. The Appellate Division was mistaken in concluding that the Rules of the City of New York in effect at the time of the collision carved street sweepers out from the recklessness standard established by VTL § 1103(b) when they are engaged in highway work in the City. To the contrary, as amended in 2007, subdivision (d)(1)(iv) of 34 RCNY § 4-02 expressly incorporated the relevant provisions from VTL § 1103(b), mirroring them 14 essentially verbatim, and even twice cross-referencing VTL § 1103. Under any reasonable reading, subdivision (d)(1)(iv) adopted into local law the recklessness standard of VTL § 1103(b) as to all government workers and vehicles engaged in work on a highway. The Appellate Division majority thus erred in construing subdivision (d)(1)(iv) not to apply to street sweepers engaged in highway work in the City. Multiple elements of subdivision (d)(1)(iv) confirm that the subdivision, as amended in 2007, adopted in full the standards of VTL § 1103(b) as to workers and vehicles engaged in highway work.4 First, the subdivision exempted persons and vehicles engaged in highway work from the local rules of the road in language that is essentially identical to the analogous exemption from state rules of the road in VTL § 1103(b). The subdivision thus provided: “Unless specifically made applicable, the provisions of these rules shall not apply to persons, teams, 4 In the courts below, Deleon quoted this Court’s passing statement in Somersall v. New York Telephone Company that VTL § 1103(b) “does not apply in the City of New York.” 52 N.Y.2d 157, 163 (1981). But that statement has no relevance here for two reasons. First, Somersall long predated the 2007 rule amendments that made absolutely clear that the standards for highway work established by § 1103(b) are incorporated into the City’s rules. Second, 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 whether the separate provision in VTL § 1103(b) exempting hazard vehicles from standing, stopping, and parking rules applied in New York City. That question is not presented here. 15 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.” Compare VTL § 1103(b). Second, subdivision (d)(1)(iv), as amended in 2007, also described the recklessness standard of care applicable to highway work, again in essentially identical language to the counterpart provision in VTL § 1103(b), and this time expressly referencing the VTL subsection. Here, subdivision (d)(1)(iv) stated in relevant part: 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. Compare VTL § 1103(b). Third, as amended in 2007, subdivision (d)(1)(iv) contained a further sentence making it clearer still that the subdivision adopted in full the standards of VTL § 1103(b). This sentence provided: “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” (emphasis added). The repeated use of the word “any” to modify “person,” “team,” and “operator” underscores the 16 fullness and breadth of the subdivision’s adoption of the standards of VTL § 1103 as to all highway work. See Department of Housing and Urban Development v. Rucker, 535 U.S. 125, 131 (2002) (explaining that “the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’”) (quotation marks omitted); accord, Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 529 (2007). It is also noteworthy that 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 while they are actually engaged in highway work. 95 N.Y.2d at 463-65. The City Department of Transportation must be understood to have incorporated the Court’s definitive interpretation of VTL § 1103(b) when it adopted the VTL provision into local law. Therefore, the Appellate Division had no basis to hold that the recklessness standard in subdivision (d)(1)(iv) did not apply to street sweepers as of the date of the collision here. For all of these reasons, at the time of the collision here, the recklessness standard of VTL § 1103 applied to street sweepers in the City. Section 4-02(d)(1)(iv) of the City’s rule plainly was intended to have the same scope and meaning as the provision of state law that it was patterned on, and thus 17 applied to all government workers and vehicles engaged in highway work, including street sweepers. C. The Appellate Division Majority Offered No Persuasive Reason For Carving Out Street Sweepers Engaged in Highway Work From the Recklessness Standard of Care. The First Department majority held that, at the time of the incident here, subdivision (d)(1)(iv) of 34 RCNY § 4-02 did not apply to city street sweepers actually engaged in work on a highway. The majority said that reading the subdivision to apply to street sweepers engaged in highway work would render meaningless a separate provision of the New York City rules in effect at the time, subdivision (d)(1)(iii)(A), which applied specifically to city street sweepers, snow plows, and spreaders. Before its repeal, subdivision (d)(1)(iii)(A) affirmatively authorized such vehicles, while engaged in their duties and acting under the orders of a superior, to “make such turns as are necessary and proceed in the direction required to complete . . . cleaning, snow removal, or sand spreading operations.” This authorization remained subject to VTL § 1102, requiring compliance with police officers’ or other traffic regulators’ lawful orders and directions. The Appellate Division majority was mistaken in concluding that subdivision (d)(1)(iii)(A) created an implicit carve-out from subdivision (d)(1)(iv) as to street sweepers, snow plows, and spreaders engaged in highway work. As an 18 initial matter, the majority overlooked the fact that “[t]he canon against surplusage is not an absolute rule.” Marx v. General Revenue Corporation, ___ U.S. ___, 133 S. Ct. 1166, 1177 (2013). Even if it were true that reading subdivision (d)(1)(iv) to apply to street sweepers would have rendered subdivision (d)(1)(iii)(A) superfluous, this would not be sufficient to overcome the multiple and clear indications that the 2007 amendments to subdivision (d)(1)(iv) were meant to incorporate the recklessness standard of VTL § 1103(b) as to all vehicles engaged in highway work, including its application to street sweepers, as definitively held in Riley. This point is driven home when one considers that subdivision (d)(1)(iii)(A) long predated the 2007 amendments to subdivision (d)(1)(iv) expressly incorporating the recklessness standard of VTL § 1103(b). The mere fact that the Department of Transportation did not repeal subdivision (d)(1)(iii)(A) as part of the 2007 amendments does not suggest that the Department of Transportation implicitly meant to carve out street sweepers engaged in highway work from the recklessness standard of the amended subdivision (d)(1)(iv), especially where numerous features of the amended subdivision (d)(1)(iv) point decisively the other way. In any event, as the dissenting justice below, construing subdivision (d)(1)(iv) to apply to all highway 19 workers and vehicles, including street sweepers, in accordance with its text, would not have rendered the former subdivision (d)(1)(iii)(A) superfluous. Simply put, before its repeal in 2013, subdivision (d)(1)(iii)(A) established a rule governing street sweepers, snow plows, and spreaders as to decisions about turns to make and directions in which to proceed, but otherwise left regulation of such vehicles when engaged in highway work to subdivision (d)(1)(iv). This compatible relationship is well supported in the text of the two subdivisions. Until its repeal, subdivision (d)(1)(iii)(A) affirmatively authorized street sweepers, snowplows, and sand spreaders, while engaged in their duties and acting under the directions of superiors, to make such turns and proceed in such directions as were necessary to complete their work. The subdivision’s rule required that the decisions as to turns and directions be made while the vehicle operator was acting under the orders of superiors and be necessary to complete the assigned work. As Justice DeGrasse correctly observed (263-64), so long as those conditions were met, subdivision (d)(1)(iii)(A) did not subject street sweepers to any standard of care as to decisions about which turns to make or in which directions to proceed. By contrast, where such decisions about turns or directions of travel are not involved, subdivision (d)(1)(iv) 20 applied to street sweepers engaged in highway work, and established a recklessness standard of care. Thus, the former subdivision (d)(1)(iii)(A) could be given effect regarding decisions about turns and directions of travel, while otherwise applying the recklessness standard of subdivision (d)(1)(iv) to street sweepers, snow plows, and spreaders engaged in highway work. The Appellate Division’s decision to the contrary relied on reasoning that this Court expressly repudiated in Riley. There, the plaintiff argued that a narrow provision in VTL § 1103(b), specifically exempting “hazard vehicles” (including street sweepers) from stopping, standing, and parking rules, meant that the general exemption in the subsection for highway workers, and associated recklessness standard, did not apply to hazard vehicles. The Court rejected that argument, holding that the specific exemption from stopping, standing, and parking rules for hazard vehicles did not implicitly limit the scope of the general exemption for all highway work. Indeed, Riley expressly disavowed an earlier decision of the First Department, which had reasoned to the contrary. See Riley, 95 N.Y.2d at 453 n.4 (disavowing 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)). The First Department has 21 repeated the same mistake in this case, and its decision here should be reversed. Nor was the Appellate Division majority correct in relying on 2013 amendments to the City’s rules to support its rejection of the recklessness standard here. The 2013 amendments repealed the former subdivision (d)(1)(iii)(A) from 34 RCNY § 4-02. That repeal does not provide any reason to depart from the analysis set forth above as to the correct interpretation of subdivision (d)(1)(iv) before the 2013 amendment. The language of subdivision (d)(1)(iv) itself was not changed in any relevant respect by the 2013 amendment.5 The Appellate Division majority cited an explanatory statement from the Department of Transportation, saying that the 2013 repeal of subparagraph (d)(1)(iii)(A) “eliminate[d] 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.” To be sure, this explanation was not artful. Its reference to a “redundancy” between the subdivisions is not fully accurate for the reasons 5 The 2013 amendment made a minor addition to the title of 34 RCNY § 4-02(d)(1)(iv) and adjusted the language of the first sentence of the provision in ways that are immaterial to the issues presented here. Compare current 34 RCNY § 4- 02(d)(1)(iv), as amended in 2013, with former 34 RCNY § 4- 02(d)(1)(iv), as amended in 2007. 22 already discussed above. Nor was its statement that sweepers, snowplows, and spreaders of sand and salt would “now” be subject to the general exemption in subparagraph (iv) accurate, because, for all of the reasons explained, the general exemption already applied to all vehicles engaged in highway work, including sweepers, snowplows, and spreaders. See, e.g., Small v. City of New York, 54 A.D.3d 747 (2d Dept., 2008) (applying reckless disregard standard in 2008 to grant summary judgment to City following accident involving front-end loader removing snow from city bus stop); Louizov v. City of New York, 2012 N.Y. Misc. Lexis 1720, at *3 (Sup. Ct. Richmond County 2012) (applying reckless disregard standard to grant summary judgment to City following 2009 collision involving City sanitation truck that was engaged in maintenance work on a highway). The Appellate Division concluded that the presence of the word “now” in the Department of Transportation’s explanatory note was “a strong indication” that plows, spreaders and sweepers were not previously subject to the general exemption set forth in § 4-02(d)(1)(iv), prior to the 2013 amendment (261). But that single word in an explanatory comment is too slender a reed upon which to base a change in the applicable standard of liability, when far more substantial tools of construction, such as text, structure, and history, all show that the standards of VTL § 1103(b) had already been 23 incorporated in the City’s rules as to all vehicles engaged in highway work by the earlier 2007 amendment. Hence, the recklessness standard of VTL § 1103(b) applied to street sweepers, both before and after the 2013 amendments to 34 RCNY § 4-02, and it represents the applicable standard of care in this case. POINT II DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT UNDER THE APPLICABLE RECKLESSNESS STANDARD OF CARE. Defendants established their entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 1067 (1979); Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324-25 (1986); Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404 (1951). In opposition to defendants’ motion for summary judgment, plaintiff failed to submit evidence in admissible form, sufficient to demonstrate the existence of a triable issue of fact. See Alvarez, 68 N.Y.2d at 326-27. Mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). Under a recklessness standard of care, in order to raise a triable issue of fact, plaintiff was required to show 24 that Falcaro “‘intentionally [did] an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and [did] so with conscious indifference to the outcome.” Saarinen v. Kerr, 84 N.Y.2d 494, 501 (1994); accord, Riley v. County of Broome, 95 N.Y.2d at 629; Levine v. GBE Contracting Corp., 2 A.D.3d 596 (2d Dept., 2003); Farese v. Town of Carmel, 296 A.D.2d 436 (2d Dept., 2002). The record in this case contains no evidence of intentional conduct by Falcaro committed in disregard of a known or obvious risk of highly probably harm. There is no evidence as a matter of law sufficient to establish recklessness. Indeed, the Appellate Division majority did not take issue with Supreme Court’s conclusion that defendants would be entitled to summary judgment under a recklessness standard. The First Department’s reversal was based solely on its erroneous holding that the ordinary negligence standard applied (261-62). Because the correct standard of care is recklessness, the trial court’s grant of summary judgment should be restored. Plaintiff failed to raise any triable issue of fact as to whether Falcaro operated the street sweeper in reckless disregard for the safety of others. The following evidence in the record is undisputed. Plaintiff stopped his vehicle to secure scrap metal (51-52). After stopping, plaintiff drove 25 back onto 176th Street, when he admittedly saw the street sweeper come from behind (52, 54-57). No cars were parked on the right side of the street (57). Falcaro was street sweeping from the moment he exited the Sanitation Department garage until the time the accident occurred, and continually kept his focus on the plaintiff’s jeep while it was ahead of his street sweeper (118- 20). In addition, plaintiff was turning his vehicle prior to impact, and was not stopped or stopping at the time of the impact with Falcaro’s street sweeper (52, 57-59). The parties offered differing testimony as to whether, before the impact, Deleon was turning his jeep to the left and pulling away from the curb, as he alleged (52, 58-59), or whether Deleon precipitously maneuvered the jeep to the right, back toward the curb, as Falcaro testified (121-22, 125-27). But even if Deleon’s account is accepted, there is no triable issue of fact under a recklessness standard, or even under an ordinary negligence standard of liability. If it were true that Deleon was moving his jeep to the left, and pulling away from the curb, as he alleged, this would mean that he maneuvered his vehicle into the path of the oncoming street sweeper, which he admittedly saw approaching from behind in his rear view mirror (52, 57-58`). Despite admitting to seeing the street sweeper, Deleon himself failed to avoid the accident (54-57). Under his own version of events, Deleon failed to yield to the street 26 sweeper that was indisputably engaged in highway maintenance. As a matter of law, there is no evidence to suggest reckless conduct, or even any negligence, by Falcaro. Summary judgment is also warranted on additional independent grounds. If Deleon’s account of the incident raised any triable issue of fact (and it does not), summary judgment would still be required because the photographic evidence in the record contradicts his account. The photographs clearly show damage and points of impact to the right front fender and bumper of the street sweeper, and the right rear bumper of plaintiff’s jeep, with greater damage to the right rear of the jeep’s bumper (186-87, 191, 193, 195-97, 201-03, 224-25). The photographs thus show that Deleon was trying to move into the right lane at the time of the collision, as Falcaro testified, since there was damage to the right rear side of plaintiff’s jeep (188-25). Had plaintiff moved his jeep to the left (away from the curb), as he alleged, the photographs would have shown damage to the left side or the left rear bumper of the jeep. None of the photographs in the record showed any such damage (177, 184-225). Moreover, if Deleon’s assertions about Falcaro’s speed of travel were otherwise sufficient to raise a triable issue of fact (and they are not), those assertions are not supported by any credible evidence. Falcaro testified that he could not have been travelling more than 15 miles per hour (123). Falcaro 27 could not have been operating his street sweeper at 35 to 40 miles per hour, as plaintiff alleged, while he was street sweeping. Falcaro’s testimony contradicted this claim, and common sense dictates that Falcaro would not be street sweeping along the right curb at 35 to 40 miles per hour. In fact, Falcaro testified “the brooms don’t go very fast” and are “not built for speed” (123). For all of these independent reasons, there is no sufficient evidence to suggest that Falcaro acted recklessly, or even negligently. Defendants demonstrated prima facie their entitlement to judgment as a matter of law, and plaintiff failed to raise a triable issue of fact in opposition, producing no evidence suggesting that defendant Falcaro was operating the street sweeper in reckless disregard for the safety of others, resulting in a risk so great as to make it highly probable that harm would follow, with a conscious indifference to the outcome. See, e.g., Lobello v. Town of Brookhaven, 66 A.D.3d 646, 647 (2d Dept., 2009); Small, 54 A.D.3d at 747-48; Curella v. Town of Amherst, 77 A.D.3d 1301, 1301-02 (4th Dept., 2010). 28 CONCLUSION This Court should reverse the First Department’s decision and order, and direct the grant of summary judgment in favor of the municipal defendants. Dated: New York, New York October 1, 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 A1 A2 NY CLS Veh & Tr § 1103 This section is current through 2014 released chapters 1-329, 332, 340, 343, 345, 349, 350 New York Consolidated Laws Service > VEHICLE AND TRAFFIC LAW > TITLE VII. RULES OF THE ROAD > ARTICLE 23. OBEDIENCE TO AND EFFECT OF TRAFFIC LAWS § 1103. Public officers and employees to obey title; exceptions (a) The provisions of this title applicable to the drivers of vehicles upon the highways shall apply to drivers of all vehicles owned or operated by the United States, this state, or any county, city, town, district, or any other political subdivision of the state, except as provided in this section and subject to such specific exceptions as are set forth in this title with reference to authorized emergency vehicles. (b) 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 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. History Add, L 1959, ch 775, eff Oct 1, 1960, with substance transferred from former § 1103. Sub (b), amd, L 1970, ch 197, § 12, L 1974, ch 223, § 1, L 1987, ch 528, § 1, eff July 30, 1987. A3 A4 The Official Compilation of the Rules of the City of New York WITH ANNOTATIONS VOLUMEll Title 34-Department of Transportation Title 35--Taxi and Limousine Commission Michael R. Bloomberg Mayor Michael A Cardozo, Es . Corporation Counsel NEW YORK LEGAL PUBLISHING CORPORATION ( ?..oo1") A5 [Title 34 ~aged in re- ::>fa vehicle, ~rs for com- rent medal- designated KY vehicles roadway(s) oods or ser- k" is a com- :ial vehicle, :; in the area te Americas nha ttan, be- tless it com- y person or ~s moved by rfront prop- ·ner. An ad- nt property. s, decks and r of the fare- d underwa- ,cent thereto ~partment of '2006. 27,2005. [See Note27] 24,2002. 14 §4-08 ? parking Jmmuter f vehicles Chap. 4] TRAFFIC RULES AND REGULATIONS such as buses, vans, taxis, liveries and deUver:y trucks, compete for curb space to load ru,d un- load passengers and goods. The large number of these vehicles has created safety hazards ~or people who utilize these services in these areas. The proposed rules areintended to eliminate the compet·ition among the differenttypes of vehlclE"s by set1in~aside space specifically for vans and for-hire vehicles. TI1e stops will allow van and for-hire veh1cle operators to load and unload pas- SeLlgers saf ly wHhout having to compete with all the other vehicles. Section 4-IO(c) is being amended to spe ify that for safety reasons, whenever possible, buses should only pick up and discharge pass n.gers within twelve inches of the curb. 2. Statement of Basis and Purpose in City Record Mar. 28, 2005: Th Commissioner of the Department of Transportation is authorized to promulgate rules re- garding parking and traffic in the City pursuant to §2903 of the New York City Charter. Sub~) vision o of §4-01, subdivisions a, g, k, I and 111 of §4-08 and subdivision f of §4-15 are be- ing amended to delete or amend incorrect references. S. ubdivision b of §4:-0:2 is being amended to delete the public health restriction on the commis- sioner's discretion to suspend t:fiese ru.les, as i t does not really apply to this department, and to add public convenience as a reason the commissioner may suspend rules. Subdivision f of §4-08 is being amended to delete the references to §4-0S(e) as it is not possible to b in compliance with (t)(1) ru1d (e)(l) ru1d (9) at the same time. Subdivisions hand i of §408 are being amendecl to clarify the requirements in areas controlled by Muni-Me.ters. Paragraph 3 of subdivision h is also being amended to reflect that electronic meters, .which are more common now, ar more likely to fail than to have broken parts. 3. Statement of Basis and Purpose in City Record Apr. 12, 2005: The Commissioner of the Department of Tra~ortation is authorized to promulgate rules re- garding parking in the City pursuMt to §2903 of the New York City Charter. Subdivision (b) of§4-0lis 'beingamended to add a definition of' driveway." Paragraph (2) of subdivision {f) of §4-08 is being amended to facilitate parking in front of driveways that have been rendered unusable by building renovation. 4. Statement of Basis and Purpose in City Record June 8, 2005: The Commissioner of th Department of Transportation is authorized to promulgate rules re- garding parking and traffic in the City pursuant to §2903 of the New York City Charter. The definition of "crosswalk" in subdiv.i$ion (b) of §4-01 is being amended to separate marked from unmarked crosswalks. Paragraph (4) of subdivision (e) of §4-08 of Title 34 of the Ruies of the City of New York pro- hibi ts stopping, stru1ding or P.ar~g at inte.r~~ons, exc~pt for "T":intersectio~s. ~owever, para- graph (5} of H1at arne subdlvis1011 (e) prohtbits stoppmg, standing or parkmg m crosswalks. Separating U1e defu,ition of c~os_swalk int·o marked and "um;narked c~Di!swalks m~kes cl~~ that unmarked. cro:;swalk do not eXl5t at two of-the three crossmgs rn a T -mtersecuon. This 15 be- cause the roadway that ends at a "T'-intersection has no "opposite side" across the intersection. Therefore, in the absence of a marked crosswalk, parking is permitted all along the top of a 'T"- intersection, which is not interrupted by anothet: roadway. 5. Statement of Basis and Purpose in City Record Dec. 12, 2005: Th Commissioner of the Departt:hent of Transportation fs authorized top1·omulgate rules re- gardin.g parking and traffic in the City pursuant to §2903 of the New York City harter. Subdivision (b) of ~4-01 alld subdivision (k) of §4-08 are being amended lo cl11ri£y that a vehi- cle that has a cab with a rear bend, or seat(s) behind th front seats is still properly altered a.nd may be considered a commercial vehicle for the purposes of these rules. These types of vehicles are increasingly common. 1'h refore, these amendri,ents are being proposed to eliminate ru1y confusion in enforcement of the comm·ercial vehicle parking rules. §4-02 Compliance With and Effect of Traffic Rules. §4-02 (a) Applicability of rules. The provisions of these rules apply to all vehicles, operators of vehicles, bicycles, operators of bicycles and pedeshians upon highways, parkways, s~opping center parking lots and municipal areas including public housing, public hos- pital parking lots, and municipal lots and garages. These rules also apply on wharf property and marginal streets, in off-street parking facilities op rated by the Depart- ~ent of Transportation, on vacant lots, and upon private roads open to public motor ve- hlcle traffic, which for the purpose of application of these rules shall be considered streets, highways or parkways, except where a different place is specifically referred to. (b) Suspension of rules. The Commissioner may, at his/her discretion, suspend any reg- ulation contained hel'ein in situations involving public safety and convenience. 107 A6 §4-02 RULES OF THE CITY OF NEW YORK [Title 34 (c) Dangerous driving. No person shall operate a vehicle in a manner that will endanger any person or property. (d) All persons are required to comply with traffic rules. (1) Exceptions. It is a traffic infraction for any person, including government employ- ees, to do any act forbidden by or fail to perform any act required by these rules, except as otherwise provided herein. (i) Authorized emerge11cy vehicles. The operator of an authorized emergency vehicle when lnvo1 ved in an eme1:gency operation as defined in §114-b of th Vehicle and Traffic Law may ercise the privileges set forth in §11 04 of the V e.hicle and Traffic Law, subject to the conditions set forth therein. (ii) Traffic/parking control veh_icles. Unless specifically made applicabl , the provisi ns of these rules shall not apply to operators of designated traffic or parking control v ru- cles, including, but not limited to, tow trucks, while actually engaged in activities nec- essary to perform their duties. (iii) Snow plows, sand spreaders, sweepers and refilse 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 Trans porta lion v hide when performing the same function, while in the performance of his/her duty and acting un- der the orders of his/her superior may make such turns as ar neces ary and proceed in the direction required to complet 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 tem- porarily 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. (iv) Highway Workers. Unl ss specifically made applicable, the provisions of these ntles shall not apply to persons, teams, motor vehicles, and other equipment actually engaged in work autho1·ized by the City of New York, the State of New York or the fed- eral government while on a highway. Section 1103 of the Vehicle and Traffic Law ls ap- plicable to any person or t am or any operator of a motor v hide 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 proce d at all times during all phases of such work with due regard for th safety of all pet·sons nor shall the foregoing provisions o£ this subparagraph protect such persons or teams or sucl1 op rators of mo- torvebicles or ther equipment from the consequences of their r ckless disregard for the safety of others. (v) Highway i11spection and quality assurance vehicles, compliance inspectio11 tmit and street assessment unit vehicles. Unless specifically made applicable, thepr visions of these rules which relate to parking and standing shall not apply to operators of New York City De- partm.ent of Transportation highway inspection vehicles, compliance inspection vehi- cles, and street assessment vehicles whil actually engaged in activities necessary to per- form their duties. (2) Public employees. The provisions of these rules shall apply to the operator of any ve- hicle owned by or used in the service of the United States Government, New York State, New York City, or other states, cities, or any borough, and it shall be unlawful for any such operator to violate any of the provisions of these rules except as otherwise permit- ted by law. (e) State law provisions superseded. Pursuant to authority provided by §1642 of the Ve- hicle and Traffic Law, the following provisions of such law shall not be effective in the 108 City and e a s s o: Ia ll th C: fo pr se la1 co set sec sio car we I of' 4 1 gar s plic rulE higl A7 r r l r ' 1 Chap. 4] TRAFFIC RULES AND REGULATIONS §4-02 City of New York: §§1112, 1142(b ), 1150, 1151, 1152, 1153, 1156(b ), 1157, 1171, 1201, 1202, and 1234. HISTORICAL NOTE S ction repealed and added City J{ecord Apr. 22, 1992 eff. May 22, 1992. Section in originaJ publication July 1, 1991. Subd. (b) amended Ci.ty Record Mar. 28, 2005 §2, eff. Apr. 27, 2005. [Se T34 §4·01 Note 2] Subd. (d) par (l) amended City Record Feb. 28, 2000 eff. Mar. 29, 2000. [See Note 1] Subd. (d) par (1) subpar (iv) amended City Record Sept. 18,2007 §1, Oct. 18, 2007. [See Note 4] Subd. (e) i\mended City Record May 9, 2003 eff. }W1e 8, 2003. [See Note 3) Subd. (e) amended City Record Nov. 23, 1998 eff. Dec. 23, 1998. [See Note 2) NOTE 1. Statement of Basis and Purpose in City Record Feb. 28, 2000: The Commissioner of the Department of Transportation is authorized to promulgate mles re- lating to the movement of vehicles pt•rsuant to §2308 of the New YOI'k City Charter and §1642 of the Stat Vehicle a11d Traffic Law. This rqle is being proposed In order to facilitate the en forcement by the Department of appli- cable law:> and rules relating to street constructi.on. TI1e f1.111ctions performed oy fhe operators of Highway Inspection and Quality Assurance (HIQA) vehicles are similar to those perform d by the Traflic Intelligence Division (TID) of the Police Department. This rule will afford HIQA ve- hi.cles the same privil g accorded to TID vehicles while in the performance of their duties. In addi tion to the enforcement of rules and Jaws regarding construction, whidl contributes to ve- hi'tular as .well as pedestrian safety, the HlQA unit responds to emergencies such as street col- lapses, wn ter main brea ks, buildirig operations, falling debris, and any other m rgency condi- tion whicl1 w ·,u.ld hinder l:he flow of traffic and/or cause closm·e of major roadways. As sucl1, exempting these vehicles from compliance io the l'taffic rules will greatly enhance the perfonn- ance of the duties of the opecrators of these vehiclell. The Compliance Inspection Unit and the Street Assessment Unit vehicles perform ta.sks such a ollection of field information about streefs and sidewalks, such as travel time.s, vehicle classifications, turning mov •ments at inter- sections and pothole identification surveys. 2. Statement of Basis and Purpose in City Record Nov. 23, 1998: The Commissioner of the Department of Transportation is authorized to regulate the p4rking of vehicles pursuant to secton 2903(a) of the New York City Charter. Currently there New York > RULES OF THE CITY OF NEW YORK > Title 34 Department of Transportation > CHAPTER 4 TRAFFIC RULES AND REGULATIONS > §4-02 Compliance With and Effect of Traffic Rules. §4-02 Compliance With and Effect of Traffic Rules. (a) Applicability of rules. The provisions of these rules apply to all vehicles, operators of vehicles, bicycles, operators of bicycles and pedestrians upon highways, parkways, shopping center parking lots and municipal areas including public housing, public hospital parking lots, and municipal lots and garages. These rules also apply on wharf property and marginal streets, in off-street parking facilities operated by the Department of Transportation, on vacant lots, and upon private roads open to public motor vehicle traffic, which for the purpose of application of these rules shall be considered streets, highways or parkways, except where a different place is specifically referred to. (b) Suspension of rules. The Commissioner may, at his/her discretion, suspend any regulation contained herein in situations involving public safety and convenience. (c) Dangerous driving. No person shall operate a vehicle in a manner that will endanger any person or property. (d) All persons are required to comply with traffic rules. (1) Exceptions. It is a traffic infraction for any person, including government employees, to do any act forbidden by or fail to perform any act required by these rules, except as otherwise provided herein. (i) Authorized emergency vehicles. 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. (ii) Traffic/parking control vehicles. Unless specifically made applicable, the provisions of these rules shall not apply to operators of designated traffic or parking control vehicles, including, but not limited to, tow trucks, while actually engaged in activities necessary to perform their duties. (iii) Refuse collection vehicles. The operator of a refuse collection vehicle working on behalf of the City of New York may: A10 (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 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 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. (v) Highway inspection and quality assurance vehicles, compliance inspection unit and street assessment unit vehicles. Unless specifically made applicable, the provisions of these rules which relate to parking and standing shall not apply to operators of New York City Department of Transportation highway inspection vehicles, compliance inspection vehicles, and street assessment vehicles while actually engaged in activities necessary to perform their duties. (2) Public employees. The provisions of these rules shall apply to the operator of any vehicle owned by or used in the service of the United States Government, New York State, New York City, or other states, cities, or any borough, and it shall be unlawful for any such operator to violate any of the provisions of these rules except as otherwise permitted by law. (e) State law provisions superseded. Pursuant to authority provided by §1642 of the Vehicle and Traffic Law, the following provisions of such law shall not be effective in the City of New York: §§1112, 1142(b), 1150, 1151, 1152, 1153, Page 2 of 5 34 RCNY 4-02 A11 1156(b), 1157, 1171, 1201, 1202, and 1234. HISTORICAL NOTE Section repealed and added City Record Apr. 22, 1992 eff. May 22, 1992. Section in original publication July 1, 1991. Subd. (b) amended City Record Mar. 28, 2005 §2, eff. Apr. 27, 2005. [See T34 §4-01 Note 2] Subd. (d) par (1) amended City Record Feb. 28, 2000 eff. Mar. 29, 2000. [See Note 1] Subd. (d) par (1) subpars (iii), (iv) amended City Record Mar. 4, 2013 §1, eff. Apr. 3, 2013. [See Note 5] Subd. (d) par (1) subpar (iv) amended City Record Sept. 18, 2007 §1, Oct. 18, 2007. [See Note 4] Subd. (e) amended City Record May 9, 2003 eff. June 8, 2003. [See Note 3] Subd. (e) amended City Record Nov. 23, 1998 eff. Dec. 23, 1998. [See Note 2] Note 1. Statement of Basis and Purpose in City Record Feb. 28, 2000: The Commissioner of the Department of Transportation is authorized to promulgate rules relating to the movement of vehicles pursuant to §2308 of the New York City Charter and §1642 of the State Vehicle and Traffic Law. This rule is being proposed in order to facilitate the enforcement by the Department of applicable laws and rules relating to street construction. The functions performed by the operators of Highway Inspection and Quality Assurance (HIQA) vehicles are similar to those performed by the Traffic Intelligence Division (TID) of the Police Department. This rule will afford HIQA vehicles the same privileges accorded to TID vehicles while in the performance of their duties. In addition to the enforcement of rules and laws regarding construction, which contributes to vehicular as well as pedestrian safety, the HIQA unit responds to emergencies such as street collapses, water main breaks, building operations, falling debris, and any other emergency condition which would hinder Page 3 of 5 34 RCNY 4-02 A12 the flow of traffic and/or cause closure of major roadways. As such, exempting these vehicles from compliance to the Traffic rules will greatly enhance the performance of the duties of the operators of these vehicles. The Compliance Inspection Unit and the Street Assessment Unit vehicles perform tasks such as collection of field information about streets and sidewalks, such as travel times, vehicle classifications, turning movements at intersections and pothole identification surveys. 2. Statement of Basis and Purpose in City Record Nov. 23, 1998: The Commissioner of the Department of Transportation is authorized to regulate the parking of vehicles pursuant to secton 2903(a) of the New York City Charter. Currently there are no enforceable provisions requiring pedestrian use of sidewalks or regulating driving on controlled-access highways in the City. The provisions of sections 1130 and 1156(a) of the Vehicle and Traffic Law (VTL) that regulate such activities throughout the rest of the State do not apply in New York City. These sections of the VTL are currently superseded by City rules adopted pursuant to VTL section 1642. The purpose of this proposed rule is to conform City traffic regulations with State law by deleting these VTL provisions from the list of VTL provisions which are superseded by City rules. This rule also deletes subdivisions (l) and (m) of section 4-07 from the City traffic rules. Subdivision (l) relates to the designation of special use lanes on the Gowanus. This provision is no longer necessary because the Gowanus now has a contraflow lane. Subdivision (m) relates to a pilot program that expired in 1997. 3. Statement of Basis and Purpose in City Record May 9, 2003: The Commissioner of Transportation is authorized to regulate vehicular traffic pursuant to section 2903(a) of the New York City Charter. A review of the provisions of section 1642 of the Vehicle and Traffic law (VTL) has shown that section 1642 does not allow cities with a population in excess of one million to supersede provisions regarding speed, unless it is to establish minimum speed limits. Consequently, the City cannot supersede the provisions of section 1180 regarding maximum speeds and that section would apply in the City. Paragraph 3 of section 4-06 is being deleted because this paragraph duplicates the provisions of VTL section 1180(a) and is, therefore, unnecessary. 4. Statement of Basis and Purpose in City Record Sept. 18, 2007: Page 4 of 5 34 RCNY 4-02 A13 The Commissioner of the Department of Transportation is authorized to promulgate rules regarding traffic operations in the City pursuant to §2903(a) of the New York City Charter. Subparagraph (iv) paragraph (1) of subdivision (d) of §4-02 is being amended to clarify the applicability of §1103 of the Vehicle and Traffic Law in the City of New York. More specifically, the rule is being amended to make clear that the recklessness standard set forth in §1103 applies to highway workers. 5. Statement of Basis and Purpose in City Record Mar. 4, 2013: 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. Case And Administrative Notes \xB6 1. See Tapia v. Royal Bus Tours, 2008 N.Y. Slip Op. 51292U, 2008 N.Y. Misc. Lexis 3694 (Sup.Ct. Queens Co.), discussed in note 1 of 34 RCNY 4-07. Rules of the City of New York Copyright 2014 New York Legal Publishing Corporation a New York Corporation All Rights Reserved Page 5 of 5 34 RCNY 4-02 A14