Opinion
2003-07151.
Decided April 5, 2004.
In an action to recover damages for personal injuries, the defendants Town of Huntington and Orlando Hernandez appeal from an order of the Supreme Court, Suffolk County (Pitts, J.), dated July 29, 2003, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.
John J. Leo, Town Attorney, Huntington, N.Y. (Margaret L. Pezzino of counsel), for appellants.
Theodore A. Stamas, Carle Place, N.Y., for plaintiff-respondent.
Before: DAVID S. RITTER, J.P., SONDRA MILLER, HOWARD MILLER, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
On December 22, 1997, at approximately 1:40 A.M., the plaintiff was a passenger in a vehicle operated by the defendant Tricia A. Conenello. While driving on Larkfield Road in the Village of East Northport in the Town of Huntington, their vehicle collided with a street sweeper owned by the defendant Town of Huntington and operated by the defendant Orlando Hernandez. Thereafter, the plaintiff brought this action to recover damages for her personal injuries.
The Town and Hernandez moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. They argued that the street sweeper was exempt from the rules of the road, and subject only to a "recklessness" standard, because it was a "hazard vehicle" which was "actually engaged in [a] hazardous operation" at the time of the accident (Vehicle and Traffic Law § 1103[b]; Riley v. County of Broome, 95 N.Y.2d 455, 466). The Supreme Court denied the motion for summary judgment, and the Town and Hernandez appeal.
We affirm. The Town and Hernandez failed to make a prima facie showing that the street sweeper was actually engaged in a hazardous operation at the time of the collision. Accordingly, the Supreme Court correctly denied the motion for summary judgment ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851).
In light of the foregoing determination, we need not address whether, on the facts presented, Hernandez's operation of the street sweeper was reckless within the meaning of Vehicle and Traffic Law § 1103(b).
RITTER, J.P., S. MILLER, H. MILLER and CRANE, JJ., concur.