Summary
In Graham v. Gerow, 6 N.Y.S.3d 859 (App. Div. 2015), the defendants did not oppose the plaintiff's contention that defendants' farm tractor and the attached field plow did not qualify as "motor vehicles" under Section 311(2), because they were used exclusively for agricultural purposes.
Summary of this case from Perpall v. Pavetek Corp.Opinion
2015-03-27
Steven P. GRAHAM and Amy P. Graham, Plaintiffs–Appellants, v. Jeremy D. GEROW and RTE 36 Holdings, LLC, Defendants–Respondents.
Valerio & Kufta, P.C., Rochester (Mark J. Valerio of Counsel), for Plaintiffs–Appellants. Ernest D. Santoro, P.C., Rochester (Ernest D. Santoro of Counsel), for Defendants–Respondents.
Valerio & Kufta, P.C., Rochester (Mark J. Valerio of Counsel), for Plaintiffs–Appellants. Ernest D. Santoro, P.C., Rochester (Ernest D. Santoro of Counsel), for Defendants–Respondents.
PRESENT: SMITH, J.P., LINDLEY, WHALEN, and DeJOSEPH, JJ.
MEMORANDUM:
Plaintiffs commenced this action seeking damages allegedly sustained by Steven P. Graham (plaintiff) when a farm tractor with an attached field plow operated by defendant Jeremy D. Gerow and owned by defendant Rte 36 Holdings, LLC crossed the center line of the highway and collided with the vehicle driven by plaintiff. We agree with plaintiffs that Supreme Court erred in denying their motion seeking partial summary judgment on the issue of liability. Plaintiffs met their initial burden by establishing that defendants' field plow “crossed the center line of the highway and struck [plaintiff's] vehicle” (Boorman v. Bowhers, 27 A.D.3d 1058, 1059, 811 N.Y.S.2d 534). In opposition, defendants failed to meet their burden of providing a “ ‘non[ ]negligent explanation, in evidentiary form, for the collision’ ” (Matte v. Hall, 20 A.D.3d 898, 900, 798 N.Y.S.2d 829).
Defendants do not oppose plaintiffs' remaining contention that the serious injury threshold does not apply here because defendants' farm tractor and field plow are not “motor vehicles” under the Insurance Law and defendants therefore do not qualify as “covered persons” under Insurance Law § 5102(j). In any event, plaintiffs are correct that, because there is no dispute that defendants' farm tractor and the attached field plow were being used exclusively for agricultural purposes, the serious injury threshold requirement is not applicable ( see§§ 5102[j]; 5104[a]; Vehicle and Traffic Law § 311[2]; Masotto v. City of New York, 38 Misc.3d 1226[A], n. 5, 2013 N.Y. Slip Op. 50285[U], *4 n. 5, 2013 WL 692892 [Sup.Ct., Kings County]; see generally Caruana v. Oswego County Bd. of Coop. Educ. Servs., 26 A.D.3d 857, 858, 809 N.Y.S.2d 750).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motion is granted.