Opinion
2002-08266.
Decided December 15, 2003.
In an action to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Queens County (Dollard, J.), dated July 22, 2002, which, inter alia, granted the motion of the defendant GBE Contracting Corp. and the cross motion of the defendant Juarez Berger for summary judgment dismissing the complaint insofar as asserted against them.
Silverstein Hurwitz Stern, P.C. (Clifford Stern and Pollack, Pollack, Isaac DeCicco, New York, N.Y. [Brian J. Isaac] of counsel), for appellants.
Cerussi Spring, P.C. (Shaub, Ahmuty, Citrin Spratt, LLP, Lake Success, N.Y. [Steven J. Ahmuty, Jr. and Christopher Simone] of counsel), for respondent GBE Contracting Corp.
London Fischer LLP, New York, N.Y. (Myra Needleman and Virginia Futterman of counsel), for respondent Juarez Berger.
Before: SANDRA L. TOWNES, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with one bill of costs.
The injured plaintiff's vehicle collided with a truck driven by the defendant Juarez Berger, an employee of the defendant GBE Contracting Corp. (hereinafter GBE) after the truck made a U-turn on the New York State Thruway.
Contrary to the plaintiffs' contention, the truck was "actually engaged in work on a highway" pursuant to Vehicle and Traffic Law § 1103(b) ( see Riley v. County of Broome, 95 N.Y.2d 455, 461-463; Skolnick v. Town of Hempstead, 278 A.D.2d 481, 482). Thus, liability will attach only if the defendants acted in conscious "`disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow'" ( Saarinen v. Kerr, 84 N.Y.2d 494, 501, quoting Prosser and Keeton, Torts § 34, at 213 [5th ed]; see Riley v. County of Broome, supra at 465-466; Bliss v. State of New York, 95 N.Y.2d 911, 913). The defendants established their entitlement to judgment as a matter of law. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the truck "was being operated in reckless disregard of others resulting in a risk so great as to make it highly probable that harm would follow" ( Farese v. Town of Carmel, 296 A.D.2d 436, 437; see Saarinen v. Kerr, supra; Skolnick v. Town of Hempstead, supra). Accordingly, the Supreme Court properly granted GBE's motion and Berger's cross motion for summary judgment dismissing the complaint insofar as asserted against them.
FLORIO, J.P., FRIEDMANN, TOWNES and COZIER, JJ., concur.