SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

236 

CA 13-01534 

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ. 

 

EDWARD GAWRON AND JOANNE GAWRON, 

PLAINTIFFS-RESPONDENTS,

V MEMORANDUM AND ORDER

TOWN OF CHEEKTOWAGA AND DAVID J. GRZYBEK, 

DEFENDANTS-APPELLANTS. 

 

CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (MARTHA E. DONOVAN OF

COUNSEL), FOR DEFENDANTS-APPELLANTS. 

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),

FOR PLAINTIFF-RESPONDENT EDWARD GAWRON.

LAW OFFICE OF MICHAEL D. HOLLENBECK, BUFFALO (MICHAEL D. HOLLENBECK OF

COUNSEL), FOR PLAINTIFF-RESPONDENT JOANNE GAWRON.

 

Appeal from an amended order of the Supreme Court, Erie County

(Joseph R. Glownia, J.), entered June 11, 2013. The amended order,

insofar as appealed from, denied the cross motion of defendants for

summary judgment dismissing the complaint. 

It is hereby ORDERED that the amended order so appealed from is

modified on the law by granting defendants’ cross motion in part and

dismissing the negligence claims in the first cause of action and as

modified the amended order is affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for

injuries they sustained when the vehicle operated by Edward Gawron

(plaintiff), in which plaintiff Joanne Gawron was a passenger, was

struck by a truck owned by defendant Town of Cheektowaga (Town) and

operated by defendant David J. Grzybek, an employee of the Town. The

truck was equipped with a plow and, at the time of the accident, the

plow was down and Grzybek was in the process of using that plow to

remove accumulated water and debris from the road. As plaintiffs

allege, “the water was propelled onto the windshield of the . . .

truck . . . , blocking [Grzybek’s] vision and causing him to cross

over into an oncoming lane and into . . . [plaintiffs’] vehicle.” 

Plaintiffs alleged that the accident “was caused as a result of the

negligent, careless, reckless and unlawful conduct on the part of the

defendants.” 

Plaintiff moved for partial summary judgment on the issue of

defendants’ negligence as well as the affirmative defenses asserted
-2- 236 

CA 13-01534 

against him, and defendants cross-moved for summary judgment

dismissing the complaint. As relevant on appeal, Supreme Court denied

defendants’ cross motion in its entirety.

Defendants contend on appeal that the court erred in denying

their cross motion because they established that Vehicle and Traffic

Law § 1103 (b) applies as a matter of law and that Grzybek was not

acting recklessly at the time of the accident. We agree with

defendants that, as a matter of law, the truck operated by Grzybek was

“actually engaged in work on a highway” at the time of the accident

(id.), “and thus that it was exempt from the rules of the road except

to the extent that its operation constituted a ‘reckless disregard for

the safety of others’ ” (Curella v Town of Amherst, 77 AD3d 1301,

1301-1302; see generally Riley v County of Broome, 95 NY2d 455, 462). 

We further conclude, however, that there are triable issues of fact

whether Grzybek acted with such reckless disregard at the time of the

accident. We therefore modify the amended order by granting only that

part of defendants’ cross motion for summary judgment seeking

dismissal of the negligence claims asserted in the first cause of

action.

Vehicle and Traffic Law § 1103 “exempts all persons and vehicles

‘while actually engaged in work on a highway’ from the Vehicle and

Traffic Law provisions (§ 1103 [b]), except for those provisions

relating to driving while intoxicated offenses” (Kabir v County of

Monroe, 68 AD3d 1628, 1632, affd 16 NY3d 217). A “highway” is defined

as “[t]he entire width between the boundary lines of every way

publicly maintained when any part thereof is open to the use of the

public for purposes of vehicular travel” (§ 118). Although the road

on which the accident occurred was a service road, it was publicly

maintained and open to the use of the public for the purpose of

vehicular travel (see generally Groninger v Village of Mamaroneck, 17

NY3d 125, 129; People v County of Westchester, 282 NY 224, 228-229). 

We thus conclude that the service road constitutes a highway within

the meaning of section 1103 (b) as a matter of law.

As we have recently written, “the inclusion of the language

‘actually engaged in work on a highway’ indicates that the exemption

applies only when such work is in fact being performed at the time of

the accident . . . To conclude otherwise would render superfluous the

phrase ‘actually engaged’ ” (Hofmann v Town of Ashford, 60 AD3d 1498,

1499). Grzybek was a maintenance janitor whose normal and routine

duties included driving a truck, patching roads and snow plowing. The

accident occurred after Grzybek had taken his lunch break at one Town

building and was returning to another Town building to continue his

work. He took the service road for a “change of scenery.” It is

undisputed that, on the day of the accident, Grzybek had not received

any specific assignment to plow the water and debris from the road and

that he did so on his own “initiative.” It is also undisputed that,

while not a common endeavor, Town maintenance employees such as

Grzybek had taken it upon themselves to use the plows attached to

their trucks to plow puddles, similar to the one plowed by Grzybek,

from highways on other occasions. Plaintiffs contend that, because

Grzybek was not performing his “assigned work,” section 1103 (b) does
-3- 236 

CA 13-01534 

not apply. We are thus called upon to interpret the word “work” as

used in the statute.

“It is fundamental that a court, in interpreting a statute,

should attempt to effectuate the intent of the Legislature . . . As

the clearest indicator of legislative intent is the statutory text,

the starting point in any case of interpretation must always be the

language itself, giving effect to the plain meaning thereof . . . In

construing statutes, it is a well-established rule that resort must be

had to the natural signification of the words employed, and if they

have a definite meaning, which involves no absurdity or contradiction,

there is no room for construction and courts have no right to add to

or take away from that meaning” (Majewski v Broadalbin-Perth Cent.

Sch. Dist., 91 NY2d 577, 583 [internal quotation marks omitted]). 

Indeed, “[t]he function of the courts is to enforce statutes, not to

usurp the power of legislation, and to interpret a statute where there

is no need for interpretation, to conjecture about or to add to or to

subtract from words having a definite meaning, or to engraft

exceptions where none exist are trespasses by a court upon the

legislative domain” (McKinney’s Cons Laws of NY, Book 1, Statutes §

76, Comment at 168). Thus, “new language cannot be imported into a

statute to give it a meaning not otherwise found therein” (§ 94,

Comment at 190), and “a court cannot amend a statute by inserting

words that are not there” (§ 363, Comment at 525; see Matter of

Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 394, rearg

denied 85 NY2d 1033).

Here, the statute exempts “all [municipal] vehicles ‘actually

engaged in work on a highway’ . . . from the rules of the road”

(Riley, 95 NY2d at 461). The statute does not state that it exempts

only those vehicles engaged in “assigned” work. Plowing water and

debris from a road is work, and that work is within the scope of

Grzybek’s duties. Plaintiffs do not suggest otherwise. Rather, their

contention is that the statute applies only when the vehicles are

“performing their assigned work” and that Grzybek was not assigned to

plow water and debris from the service road on the day of the

accident. In our view, interpreting the statute as the dissent and

plaintiffs suggest improperly adds language to the statute by

qualifying the word “work.” It is not the function of this Court to

usurp the power of the legislature and rewrite a clear and unambiguous

statute. Aside from statutory exceptions not relevant herein, all

municipal vehicles actually engaged in work are exempt from the rules

of the road. Inasmuch as Grzybek’s vehicle was actually engaged in

work, albeit unassigned work, the reckless disregard standard of care

set forth in Vehicle and Traffic Law § 1103 (b) applies as a matter of

law.

Defendants further contend that, as a matter of law, Grzybek’s

conduct did not rise to the level of reckless disregard for the safety

of others within the meaning of Vehicle and Traffic Law § 1103 (b). 

We reject that contention. Even assuming, arguendo, that defendants

established their entitlement to judgment as a matter of law on that

issue, we conclude that plaintiffs, in opposition to defendants’ cross

motion, submitted evidence from which a jury could find that Grzybek
-4- 236 

CA 13-01534 

“had intentionally committed 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’ ” (Ferreri v Town of Penfield, 34 AD3d

1243, 1243-1244, quoting Saarinen v Kerr, 84 NY2d 494, 501). 

All concur except LINDLEY and SCONIERS, JJ., who dissent and vote

to affirm in the following Memorandum: We respectfully dissent

because we conclude, based on the facts and circumstances of the

subject motor vehicle accident, that Vehicle and Traffic Law § 1103

(b) does not apply as a matter of law in this case. We therefore

conclude that Supreme Court properly refused to dismiss the negligence

claims in the first cause of action. Specifically, while we agree

with the majority that the access road where the accident occurred

constitutes a “highway” (see generally Groninger v Village of

Mamaroneck, 17 NY3d 125, 129; Healy v City of Tonawanda, 234 AD2d 982,

983), we conclude that the actions of defendant David J. Grzybek, an

employee of defendant Town of Cheektowaga (Town), at the time of the

accident are not protected by the statute because he was not “actually

engaged in work on a highway” as contemplated by the statute (§ 1103

[b]). 

It is undisputed that (1) Grzybek’s duties had included plowing

snow, but on the day of the accident he was assigned to perform

maintenance and janitorial work at the Town’s senior center; (2) on

this date in late March, the snow plow was on the pickup truck that

Grzybek was driving only because the Town had not yet had the time or

opportunity to remove it; (3) Grzybek was returning from lunch at the

time of the accident and he had chosen this route along this access

road simply for “a change of scenery”; (4) it was not common to use a

plow to move water from a road, but it had been done on previous

occasions; (5) there was no proof that plows were ever used to remove

debris from a road; (6) Grzybek was not instructed to remove the water

and debris from this access road, but did so on his own initiative;

(7) he had, in fact, never been instructed by a supervisor to use a

plow to remove either water or debris from roads; (8) there is no

evidence suggesting that the water or debris posed an immediate hazard

on this access road; and (9) Grzybek was terminated as a result of

this incident. Notably, Grzybek testified that, depending on the

nature of the debris, the usual procedure for removing debris from

roads involved using high lifts or brooms.

Vehicle and Traffic Law § 1103 is a statute in derogation of the

common law. “ ‘The Legislature in enacting statutes is presumed to

have been acquainted with the common law, and generally, statutes in

derogation or in contravention thereof, are strictly construed, to the

end that the common law system be changed only so far as required by

the words of the act and the mischief to be remedied’ ” (Kirshtein v

AmeriCU Credit Union, 65 AD3d 147, 152, quoting McKinney’s Cons Laws

of NY, Book 1, Statutes § 301 [a], Comment). Moreover, given that

this statute is “ ‘in derogation of [a] plaintiff’s common-law

rights,’ the statute . . . should be strictly construed in the

plaintiff[s’] favor” (Goodwin v Pretorius, 105 AD3d 207, 216). 
-5- 236 

CA 13-01534 

The majority’s overly broad application of section 1103 (b) in

this case stands in stark contrast to the much narrower scope that

courts have afforded to Vehicle and Traffic Law § 1104. Section 1104

applies the reckless disregard standard to an “authorized emergency

vehicle,” but only if the driver of that vehicle is engaged in an

“emergency operation” as that term is defined in Vehicle and Traffic

Law § 114-b and the driver is engaged in one of the specific types of

protected conduct enumerated in Vehicle and Traffic Law § 1104 (b)

(see Kabir v County of Monroe, 16 NY3d 217, 220; LoGrasso v City of

Tonawanda, 87 AD3d 1390, 1391).

Given the limits that the statute and case law apply to Vehicle

and Traffic Law § 1104 for first responders, we conclude that the

legislature could not possibly have intended to apply such a broad

interpretation to the phrase “actually engaged in work on a highway”

in Vehicle and Traffic Law § 1103 (b) as that applied by the majority

here. It is clear that, on the day of the subject accident, Grzybek

was not assigned to clear water or debris from this access road or any

other road in the Town. Moreover, he was not assigned that day to use

the plow on this pickup in any way whatsoever, and his use of the

truck on this day was solely to transport himself and any equipment

necessary to perform maintenance and janitorial work. By applying

Vehicle and Traffic Law § 1103 (b) as a matter of law in this case,

the majority is effectively holding that the statute applies in every

case to all public employees, no matter their status, duties or job

assignments, who, at any time, decide, in their sole discretion, to

use even the most inept, incompetent and ill-advised methods to

perform a task that could possibly be construed as “work on a

highway,” thereby leaving injured persons uncompensated for their

injuries unless they can satisfy the “reckless disregard for the

safety of others” standard. Such a result extends the scope of

Vehicle and Traffic Law § 1103 (b) far beyond what the legislature

intended, especially given the corresponding limits that Vehicle and

Traffic Law § 1104 places on the police and other first responders. 

We would therefore apply the standard of ordinary negligence to

defendants in this personal injury action, and we would affirm the

amended order. 

Entered: May 2, 2014 Frances E. Cafarell

Clerk of the Court