Tineo v Gibbs
Annotate this CaseDecided on March 30, 2010
Supreme Court, Richmond County
Dioselyn Altagrassia Tineo, Plaintiff,
against
James Jerome Gibbs and THE CITY OF NEW YORK, Defendants.
102128/07
Thomas P. Aliotta, J.
The motion for summary judgment by defendant the City of New York is denied.
Defendant the City of New York (hereinafter, the "City"), moves by notice of motion for an order pursuant to CPLR 3211 and 3212 granting it summary judgment and dismissing the complaint and all cross claims against it. Plaintiff Dioselyn Altagrassia Tineo (hereinafter, "Plaintiff") and co-defendant James Jerome Gibbs (hereinafter, "Gibbs") oppose the motion.
This lawsuit arises from a motor vehicle accident which occurred on February 22, 2006 at approximately 5:12 P.M. in the intersection of Lily Pond Avenue and Major Avenue on Staten Island. At the time in question, a vehicle owned and operated by Gibbs struck the plaintiff, a pedestrian, as she was in the process of crossing the above intersection from west to east. As a result of the accident, plaintiff was rendered unconscious and caused to sustain various personal injuries. Plaintiff prematurely commenced this action by the filing and service of a summons with complaint on or about March 29, 2006. On May 19, 2006, plaintiff filed a Notice of Claim against the City alleging that it failed to install proper traffic control devices at the accident site; failed to conduct proper roadway studies and failed to comply with the directives in studies conducted into the installation of traffic control devices. On or about October 19, 2006, plaintiff served an amended summons and complaint to which the City answered on or about November 29, 2006. Defendant Gibbs served an answer to the amended complaint on or about October 30, 2006 and amended his answer with a cross claim against the City on July 7, 2008.
In support of its application, the City has submitted an attorney's affirmation, copies of the police accident report, notice of claim, pleadings and the verified bill of particulars; the deposition transcripts pertaining to the testimony by plaintiff, Gibbs, Stuart Schorr (an employee of the New York City Department of Transportation and Borough Engineer for Traffic on Staten Island), and Ralph Gelwicks (Deputy Chief of the Intersection Control Unit of the New York City Department of Transportation); an affidavit by Mr. Schorr; an intersection control analysis done in 2005 for the accident location; and copies of various studies conducted into the need to install traffic control devices at diverse locations in the City. Based on these submissions, the City contends there is no evidence that it had prior notice of an alleged defect in the roadway where the accident occurred. Accordingly, it is claimed that neither its action nor inaction could be deemed a proximate cause of this accident. Moreover, the City contends that it is immune from claims arising out of the exercise of its discretionary functions, e.g., whether a traffic control device should have been installed at the accident site. The City further contends that, as a matter of law, its alleged action or inaction was not a substantial factor in causing the subject accident which, it claims, was caused solely by the negligence of co-defendant Gibbs.
In opposition, plaintiff has submitted an attorney's affirmation, supplemental responses to [*2]a discovery order and an expert affidavit by Robert T. Hintersteiner, a professional engineer. In the preparation of his expert affidavit, Mr. Hintersteiner reviewed copious documents, including the police accident report, plaintiff's bill of particulars and amended verified complaint; the City's responses to combined notices for discovery and inspection ; the New York State Department of Transportation's (DOT) Safety Information System Accident History from February 2000 to February 2006; Traffic Intersection Studies dated December 2004 and March 2005; Traffic Sign Orders for the intersection of Lily Pond Avenue and various cross streets; 2004 and 2005 Traffic Signal Studies for Lily Pond Avenue; 2001 and 2004 Traffic Signal Studies for the intersection of Lily Pond Avenue and McClean Avenue; a 2002 Traffic Signal Study for the intersection of Lily Pond Avenue and Guildford Street; Safe Team Tracking Forms for the intersection of Lily Pond Avenue and McClean Avenue issued in 2004 and 2006; the Pavement Marking Plan for Lily Pond Avenue from its intersections with Tompkins Avenue to Guildford Street (as revised in 1997, 1998, 2000 and 2003); the deposition testimony of plaintiff, Stuart Schorr, co-defendant James Gibbs and Ralph Gelwicks; a New York City Transit Authority Bus Map of Staten Island dated March 1998; the 1988 and 2003 editions of the National Manual on Uniform Traffic Control Devices (hereinafter, MUTCD); the 1983 edition of the New York State DOT's MUTCD; and an accident site investigation conducted on Monday, October 23, 2006. Based upon said review, Mr. Hintersteiner opined with a reasonable degree of engineering certainty that numerous departures by the City's DOT undermined the rationale of its traffic safety plan as it affects the intersection of Lily Pond Avenue and Major Avenue, making same an unsafe roadway for pedestrians and were a substantial factor in causing the underlying accident. Specifically, Mr. Hintersteiner cites, inter alia, the failure to conduct studies reflective of time and volume of pedestrian traffic, the deficiencies of the bus transfer area, the omission of pedestrian/vehicle conflict study, all of which contribute to the inadequacies of the City's traffic safety plan.
Co-defendant Gibbs adopts and incorporates the legal arguments advanced by plaintiff.
In reply, the City reiterates its argument that intrusion upon its planning and decision-making functions with regard to its traffic control system is limited, and under the doctrine of "qualified immunity", no liability may attach in this case.
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Rotuba Extruders v. Ceppos, 46 NY2d 223; Herrin v. Airborne Freight Corp., 301 AD2d 500). On a motion for summary judgment, the function of the court is issue finding, not issue determination (see Weiner v. Ga-Ro Die Cutting, 104 AD2d 331, affd 65 NY2d 732). In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion (see Glennon v. Mayo, 148 AD2d 580). To prevail upon the motion, the moving party must present prima facie evidence of its entitlement to judgment as a matter of law (Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Upon its failure to do so, the motion will be denied. Once a prima facie showing has been made, however, the burden shifts to the party opposing the motion to produce competent evidence demonstrating the existence of triable issues of fact (Zuckerman v. City of New York, 49 NY2d 557, 562).
It is familiar law that a municipality owes the public an absolute, nondelegable duty to maintain its streets in a reasonably safe condition. Nevertheless, in litigation predicated upon the alleged failure to exercise due care in the execution of a highway safety plan, the courts have imposed a well settled limit on the extent of judicial intrusion (see Weiss v. Fote, 7 NY2d 579, 584-586). Thus, in the field of traffic design engineering, a municipality is accorded a qualified immunity from liability arising out of its highway planning decisions (see Friedman v. State of New York, 67 NY2d 271, 283). As memorialized in the Weiss case, the doctrine of qualified immunity as applied in highway safety cases, means that a municipality may not be held liable in tort unless its study of traffic conditions is plainly inadequate, or there is no reasonable basis for the plan adopted (id. at 284). Something more than a mere choice between the conflicting opinions of experts is required before a governmental subdivision may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public (id.). However, [*3]"[o]nce the [municipality] is made aware of a dangerous traffic condition, it must undertake reasonable study with an eye toward alleviating the dangers" (id. [internal quotation marks and citations omitted]).
With this criteria in mind, even assuming arguendo that the City has met its prima facie burden of proof, the analysis contained within the expert affidavit proffered by plaintiff is sufficient to create a triable issue of fact as to whether, e.g., the City's failure to install a traffic control device at the subject intersection was the product of inadequate study or lacked a reasonable basis, and was a substantial cause of plaintiff's injury (see Alexander v. Eldred, 63 NY2d 460, 466; Race v. Town of Orwell, 28 AD3d 1112). In addition, a triable issue of fact exists as to whether liability can be imposed upon the City, even if found negligent, based upon plaintiff's familiarity with the location where the accident occurred (see Race v. Town of Orwell, 28 AD3d at 113; Howard v. Tylutki, Jr., 305 AD2d 907, 908).
As is always, the determination herein is limited to the facts of the case.
Accordingly, it is
ORDERED that the motion for summary judgment by defendant the City of New York is denied.
ENTER,
__/s/___________________
Hon. Thomas P. Aliotta
DATED: March 30, 2010J.S.C.
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