Defendant/third-party plaintiff City of Yonkers s/h/a the City of Yonkers, Yonkers Department of Public Works, and James O'Connor ("Yonkers") moves for an order, pursuant to CPLR 3212, granting summary judgment and dismissing the remaining causes of action as against it on the ground that movant's vehicle was not being operated recklessly.

Defendant Romeo Forchetti ("Forchetti") cross-moves for an order granting summary judgment on the ground that plaintiff failed to show that cross-movant created a dangerous condition which caused the incident.

The following papers were read:

Notice of Motion - Affirmation in Support of Michael1-25

Levinson, Esq. - Annexed Exhibits A-W

Notice of Cross-Motion - Affirmation in Support of John26-29

Della Jacono, Esq. - Annexed Exhibits A-B

Affirmation in Opposition of Marc Citrin, Esq. - Annexed30-35

Exhibits A-E

Reply Affirmation of Michael Levinson, Esq. - Annexed36-38

Exhibits A-B

Upon the foregoing papers it is hereby ORDERED that defendant Yonkers' motion is denied.

On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law. See Andre v Pomeroy, 35 NY2d 361 (1974). The movant must set forth a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. See Alvarez v Prospect Hospital, 68 NY2d 320 (1986). Once the movant sets forth a prima facie case, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact. See Zuckerman v City of New York, 49 NY2d 557 (1980).

The instant action arose on March 28, 2002 at approximately 9:45 A.M. when a street sweeper owned and operated by defendant Yonkers was engaged in cleaning Edgewood Avenue. At the time of the occurrence, James O'Connor ("O'Connor"), an employee of the Department of [*2]Public Works ("DPW"), an agency of defendant City of Yonkers ("Yonkers"), was operating the street sweeper in the course of his employment. He maneuvered the vehicle past a tree removal operation in front of 186 Edgewood Avenue where the sweeper's rotating brush went over a rope being utilized by the tree cutters. The other end of the rope was connected to a tree branch on which plaintiff was standing. The rope became entangled in the rotating brush causing the tree's branch to break and plaintiff to fall some forty (40) feet onto the roadway. Defendant Forchetti is the adjoining property owner of 186 Edgewood Avenue. Defendant Yonkers commenced a third-party action against plaintiff's employer, Lucio's Tree Service, Inc. ("Lucio"), seeking contribution and indemnification. Third-party Lucio was hired by defendant Forchetti to perform the tree removal.

Vehicle and Traffic Law §1103(b) states "[u]nless 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." See also Riley v County of Broome, 95 NY2d 455 (2000) (street sweeper engaged in cleaning streets is performing work on highway and thus exempt from rules of road) and Saarinen v Kerr, 84 NY2d 494 (1994) (same recklessness standard imposed on emergency vehicles such as police, fire and ambulance applies to highway work vehicles). Recklessness is established when the actor has intentionally done 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 has done so with conscious indifference to the outcome." Id.

Defendant Yonkers asserts that immediately following the incident, its police department was present on the scene and conducted an investigation. Same detailed no negligence, recklessness or criminal activity. See a certified copy of the detective division's investigation report by Det. Michael J. Lorenzo annexed as Exhibit R to the affirmation in support of Michael Levinson, Esq. Moreover, the United States Department of Labor Occupational Safety and Health Administration ("OSHA") investigated on the date in question and issued a citation and notification of penalty to third-party defendant Lucio. See Exhibit T annexed to the affirmation in support of Michael Levinson, Esq. Finally, tests taken of O'Connor after the incident showed negative results for drugs and alcohol. See Exhibit R annexed to the affirmation in support of Michael Levinson, Esq.

In opposition, plaintiff contends that the street sweeper ran over the safety cones and entered the work zone at 25-30 mph. See the General Municipal Law §50-h hearing transcript of Carlos Cezar Faria at 100 and 114-115 annexed as Exhibit A to the affirmation in opposition of Marc Citrin, Esq. and the examination before trial transcript of Carlos Cezar Faria at 82 annexed as Exhibit B to the affirmation in opposition of Marc Citrin, Esq.; see also the May 11, 2002 affidavit of plaintiff's co-worker Deivis J. Paulino annexed as Exhibit C to the affirmation in opposition of Marc Citrin, Esq., the March 18, 2003 statement of co-defendant Forchetti annexed as Exhibit D to the affirmation in opposition of Marc Citrin, Esq., and the examination before trial transcript of Romeo Forchetti at 26-27 annexed as Exhibit E to the affirmation in opposition [*3]of Marc Citrin, Esq.

Where conflicting affidavits and other contradictory deposition testimony are proffered, as here, judgment as a matter of law should not be granted. See Prete v Rafla-Demetrious, 224 AD2d 674 (2nd Dept 1996); see also Webar, Inc v Capra, 212 AD2d 594 (2nd Dept 1995). "The court, on a motion for summary judgment, should not determine issues of credibility." See Venetal v City of New York, 21 AD3d 1087 (2nd Dept 2005); see also Woszczyna v BJW Associates, 31 AD3d 754 (2nd Dept 2006) and Yellitz v Brooklyn Union Gas Company, 242 AD2d 270 (2nd Dept 1997) (the resolution of issues regarding the credibility of both expert and lay witnesses and the accuracy of their testimony are matters peculiarly within the province of the jury).

Accordingly, judgment as a matter of law is inappropriate as a genuine triable issue of material fact exists as to recklessness. See CPLR 3212(b).

It is hereby further ORDERED that defendant Forchetti's cross-motion is granted, there being no opposition.

Accordingly, plaintiff's complaint and all cross-claims and counterclaims are dismissed in their entirety as against defendant Forchetti.

Submit judgment on ten (10) days notice within thirty (30) days hereof.

Dated: December 18, 2009

White Plains, New York

Hon. Orazio R. Bellantoni

Justice of the Supreme Court

Frank J. Rubino

Corporation Counsel

Attorney for Defendant/Third-Party Plaintiff City of Yonkers

40 South Broadway, Room 300

Yonkers, New York 10701-3883

Law Offices of Epstein & Rayhill

Attorneys for Defendant Romeo Forchetti

565 Taxter Road, Suite 275

Elmsford, New York 10523

Scott Baron & Associates, P.C. [*4]

Attorneys for Plaintiff

159-49 Cross Bay Boulevard

Howard Beach, New York 11414