UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER

AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY

OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED

CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES

JUDICATA.

At a stated term of the United States Court of Appeals for

the Second Circuit, held at the Daniel Patrick Moynihan United

States Courthouse, 500 Pearl Street, in the City of New York, on

the 19th day of December, two thousand six.

PRESENT:

Hon. Dennis Jacobs,

Chief Judge,

Hon. John M. Walker, Jr.,

Hon. Reena Raggi,

Circuit Judges.

X

JORGE OLIVEIRA,

Plaintiff-Appellant,

- v. - No. 05-6946-cv

CITY OF MOUNT VERNON,

Defendant-Appellee.

X

APPEARING FOR PLAINTIFF- KEVIN CONCAGH, Law Offices of Kevin

APPELLANT: Concagh, Esq., New York, New York.

APPEARING FOR DEFENDANT- HINA SHERWANI (Helen M. Blackwood,

APPELLEE: on the brief), Corporation Counsel

for the City of Mount Vernon, Mount

Vernon, New York.

Appeal from a judgment of the United States District Court for the Southern District of New York.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the district court's judgment is AFFIRMED in part, VACATED in part, and REMANDED for further proceedings consistent with this order.

Plaintiff-appellant Jorge Oliveira appeals from the December 6, 2005 judgment of the United States District Court for the Southern District of New York (McMahon, Judge) granting summary judgment to defendant-appellee City of Mount Vernon (the "City").

Oliveira argues that summary judgment was improper because (1) the snowplow that allegedly hit him could not have been "actually engaged in work on a highway" at the time of the accident within the meaning of N.Y. Veh. & Traf. Law § 1103(b), thus not triggering that provision's requirement of a showing of reckless disregard; and (2) even if the City is protected by § 1103(b), there was a material factual dispute over whether the snowplow driver acted with reckless disregard. We assume the parties' familiarity with the facts and procedural history of this case.

We review a district court's grant of summary judgment de novo. Phaneuf v. Fraikin, 448 F.3d 591, 595 (2d Cir. 2006). The district court properly held that the City was entitled to the protection afforded by § 1103(b). Section 1103(b) exempts all vehicles "actually engaged in work on a highway" - including "hazard" vehicles such as snowplows, see N.Y. Veh. & Traf. Law. § 117-a - from the rules of the road and permits liability only if the driver's actions meet a "reckless disregard" standard.1 Riley v. Broome, 95 N.Y.2d 455, 462-63 (2000). While § 1103(b) does not cover travel to and from a work site, see McLeod v. New York, 8 Misc.3d 1009(A), 2005 WL 1552696, at *3 (N.Y. Ct. Cl. May 10, 2005); Marvin v. Town of Middlesex, No. 00-231, 2002 WL 58928, at *4 (N.Y. Sup. Ct. Jan. 10, 2002), or travel between work sites, see Davis v. Inc. Village of Babylon, 786 N.Y.S.2d 550, 551 (App. Div. 2d Dep't 2004), the statute does protect a vehicle operator when he is navigating through his "run" or "beat," see McLeod, 2005 WL 1552696, at *5; McDonald v. New York, 673 N.Y.S.2d 512, 519 (Ct. Cl. 1998). Regardless of the position of the snowplow's blade, undisputed record evidence establishes that the driver received an order to go to City Hall during his shift, requiring him to drive to a location within his designated area. Because the driver was navigating through his beat, he was "actually engaged in work on a highway." The district court, however, improperly granted summary judgment on the issue of whether the driver acted with reckless disregard. Viewing the evidence in the light most favorable to the party opposing summary judgment, the record could support findings that at the time of the accident, the driver ­ working a double shift after getting only four hours of sleep the night before ­ traveled at 40 to 50 miles per hour through a mixed residential neighborhood without his headlights engaged and close enough to parked cars to hit a person standing next to one.

Despite substantial credibility issues, a reasonable jury could find that a driver traveling at that speed under the circumstances presented by Oliveira acted with reckless disregard for the safety of others. See Phaneuf, 448 F.3d at 595 (stating that courts must avoid credibility assessments in granting summary judgment).

For the foregoing reasons, the district court's judgment is AFFIRMED in part, VACATED in part, and REMANDED for further proceedings consistent with this order.

FOR THE COURT: Thomas W. Asreen, Acting Clerk By: Oliva M. George, Deputy Clerk

1 Contrary to the district court's analysis, it does not matter if the snowplow was engaged in "hazardous operation" at the time of the accident, see Oliveira v. City of Mount Vernon, 401 F. Supp. 2d 379, 381 (S.D.N.Y. 2005) (quoting N.Y. Veh. & Traf. Law § 1103(b)); being "actually engaged in work on a highway" is sufficient. Under § 1103(b), being a hazard vehicle only serves the additional purpose of exempting that vehicle from N.Y. Veh. & Traf. Law. § 1202(a), which regulates stopping, standing, and parking. See Riley, 95 N.Y.2d at 462. That additional exemption is irrelevant to this case.