Soto v City of New York

[*1] Soto v City of New York 2008 NY Slip Op 50389(U) [18 Misc 3d 1140(A)] Decided on February 28, 2008 Supreme Court, Kings County Schneier, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 28, 2008
Supreme Court, Kings County

Herman Soto, Plaintiff,

against

The City of New York, Defendants,



14873/98



Attorneys for Plaintiff

FINZ & FINZ, P.C.

100 JERICHO QUADRANGLE

JERICHO, NEW YORK 11753

(516) 433-3000

Attorney for Defendants

MICHAEL A. CARDOZO, ESQ.

CORP. COUNSEL OF THE CITY OF NEW YORK

350 JAY STREET, 8TH FLOOR

BROOKLYN, NEW YORK 11201-2908

Martin Schneier, J.

The evidence at trial established that, in 1989, the defendant, The City of New York installed highway guardrails along Highland Boulevard where it passes through Highland Park. The guardrails were installed to prevent dumping and joyriding in the park. The guardrail generally ran [*2]alongside the roadway. However, at one point the presence of underground electrical cables necessitated a deviation and the guardrail was diverted from the side of the roadway and was situated behind some trees.

In the early morning hours of February 8, 1997, plaintiff was traveling southbound on Highland Boulevard when he was confronted with a car traveling north in the wrong lane. Plaintiff swerved across the northbound lane and struck a tree at the point where the guardrail deviated from the side of the roadway.

The jury apportioned liability equally between the plaintiff and the defendant. An award of $500,000 was made for past pain and suffering and no award was made for future damages. Plaintiff moves to set aside the verdict on the issue of future damages and for an award of future damages to be ordered. Defendant cross-moves to set aside the verdict and enter judgment in favor of the City of New York.

A municipality has the nondelegable duty of maintaining its roads and highways in a reasonably safe condition (see, Friedman v. State of New York, 67 NY2d 271). Where the paved portion of the roadway is adequate, the municipality owes no duty to a motorist who leaves the roadway because "travel beyond those limits is neither contemplated nor foreseeable" (Tomassi v. Town of Union, 46 NY2d 91, 97; McKenna v. Garcia, 189 AD2d 756, 757). An exception exists to the extent that "at points of particular danger along its highways and bridges, a municipality is obligated to provide barriers of sufficient strength to hold an automobile traveling at a reasonable rate of speed"(Brady v City of New York, 39 AD2d 600, 601). Thus, only "when the State is made aware of a dangerous highway condition and does not take action to remedy it, [can] the State can be held liable for resulting injuries" (Friedman v. State of New York, 67 NY2d 271, 286). On the other hand, If a municipality elects to provide installations adjacent to the highway, it must construct and maintain them in a reasonably safe condition for foreseeable uses, including those uses resulting from a driver's negligence or an emergency (see, Stiuso v. City of New York, 87 NY2d 889, 891; Bottalico v. State of New York, 59 NY2d 302, 305-306)

In this case, there is no evidence that the accident site was a point of particular danger where it would be negligent not to provide guardrails. The fact that the defendant provided guardrails along other parts of the roadway did not render the unprotected section dangerous. Neither did the [*3]construction and maintenance of the guardrails cause or exacerbate the plaintiff's injuries. In fact, the plaintiff's position at trial was that it was the absence of guardrails which exacerbated the plaintiff's injuries. However, because the plaintiff had no duty to provide guardrails, the Court finds that the defendant is entitled to judgment as a matter of law.

Accordingly, the defendant's cross-motion to set aside the verdict and enter judgment in favor of the City of New York as a matter of law is granted and the plaintiff's motion is denied.

This shall constitute the Decision and Order of the Court.

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J.S.C.