Rosko v City of New York
Annotate this CaseDecided on September 18, 2013
Supreme Court, Richmond County
Leonard Rosko and MAUREEN ROSKO, Part C-2, Plaintiffs,
against
The City of New York, TYRONE POPE, SHIRLEY POPE and HOLLIS DRISCOLL, Defendants.
101160/06
Thomas P. Aliotta, J.
The following papers numbered 1 to 3 were fully submitted on the 19th day of June, 2013.
Papers
Numbered
Notice of Motion for Summary Judgment of Defendant THE CITY OF NEW YORK,
with Supporting Papers and Exhibits
(dated November 19, 2012) 1
Affirmation in Opposition of Plaintiffs,
with Supporting Papers and Exhibits
(dated March 25, 2013) 2
Reply Affirmation of Defendant THE CITY OF NEW YORK
(dated June 14, 2013) 3
____________________________________________________________________________________
Upon the foregoing papers, the motion of defendant THE CITY OF NEW YORK for, inter alia, summary judgment and dismissal of the complaint as against it is granted.
Plaintiffs commenced this action to recover damages for injuries sustained by LEONARD ROSKO on December 2, 2005 when he was struck by a motor vehicle while standing on the [*2]sidewalk of Van Duzer Street, at or near its intersection with Waverly Place on Staten Island.[FN1] According to the complaint, ROSKO (hereinafter plaintiff) was working at said location for non-party Con Edison, when two vehicles driven, respectively, by defendants TYRONE POPE and HOLLIS DRISCOLL came "racing" side-by-side at a high rate of speed down Van Duzer, which is a one-way, two-lane roadway. Plaintiff was injured when the DRISCOLL vehicle apparently ran off the road and struck him. As a result of said collision, plaintiff sustained diverse physical injuries which required surgical intervention, and have left him scarred and debilitated.
In addition to the drivers of both vehicles, plaintiffs sued THE CITY OF NEW YORK (hereinafter THE CITY), alleging negligence in the design, maintenance and construction of the roadway in the area where the accident occurred. In particular, plaintiffs allege that the moving defendant, i.e., THE CITY was negligent in failing to conduct timely and adequate traffic studies of the subject area despite its knowledge of repeated accidents at said location and numerous complaints about the unsafe nature of the roadway. Plaintiffs also allege that THE CITY, as the owner of the pavement and sidewalk, violated Labor Law §§200 and 241(6) by failing to provide plaintiff with a safe place to work.
According to the complaint, plaintiff had been sent to Van Duzer Street by his employer to repair damage to a junction pole that had been struck previously by a car. Plaintiff was allegedly inspecting the pole at sidewalk level when he was injured.
In moving to dismiss the complaint for failure to state a cause of action or, in the alternative, summary judgment, THE CITY contends that (1) the Labor Law is inapplicable per se to the claims asserted against it, and (2) the allegations of negligent roadway design do not provide a viable basis for liability against THE CITY, as the latter represents a discretionary governmental function as to which THE CITY enjoys absolute immunity. In addition, THE CITY argues that plaintiffs have failed to allege the existence of a special duty, and that no such duty exists. Finally, THE CITY maintains that any purported negligence on its part was not a proximate cause of plaintiff's injuries.
In support of dismissal of plaintiffs' Labor Law claims, THE CITY argues that the sections in question were intended solely to regulate the responsibility for worker safety applicable to contractors, owners and employers. Here, it is undisputed that plaintiff was not employed by THE CITY, but by Con Edison. In addition, Labor Law §241(6), entitled "Construction, excavation and demolition work", is, by its terms, applicable only to those injuries which occur during the performance of such work due to the failure of contractors and owners (with exceptions not here relevant) to comply with specific safety regulations set forth in the Industrial Code.According to THE CITY, plaintiff at bar was not engaged in any construction, excavation or demolition work at the time of his injury. Finally, THE CITY argues that the junction pole which plaintiff had been sent to repair was not owned by THE CITY, and there has been no proof that THE CITY was in any way involved in the work which plaintiff was performing when the accident occurred. Therefore, Labor Law §241(6) is said to be wholly inapplicable. Somewhat similarly, THE CITY argues that Labor Law §200 is inapplicable, as any claims of defective sidewalk or roadway design fall squarely under the shield of its governmental function immunity (see Weiss v. Fote, 7 NY2d 578, 588).
Alternatively, THE CITY contends that the action must be dismissed because plaintiffs have failed to plead a "special duty". Relying upon the Court of Appeals decision in Valdez v. City of [*3]New York (18 NY3d 69), THE CITY asserts that plaintiff cannot bring a tort claim against the government or a government actor unless he or she demonstrates the existence of a special duty. Accordingly, since none is present in the instant case, plaintiffs cannot state a viable cause of action against THE CITY (see Blackstock v.Board of Educ of City of NY, 84 AD3d 524).
On the subject of governmental function immunity, THE CITY maintains that the conduct complained of (i.e., defective roadway design) involves a discretionary rather than ministerial governmental act, and that it has demonstrated prima facie its exercise of discretion in the case at bar. According to THE CITY, nothing further is required. In distinguishing between the two, THE CITY cites the Court of Appeals' observation in Tango v. Tulevech (61 NY3d 34, 31), that "[d]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory results".
As postulated by THE CITY, once it is determined that a governmental act is discretionary, i.e., the product of reasoned judgment, the municipality is entitled to absolute immunity. It is not for the trier of fact to second-guess discretionary governmental actions, nor is a municipal defendant answerable in damages for the injurious consequences of such actions, even when negligent (Valdez v. City of New York, 18 NY3d at 76; see Matter of World Trade Ctr Bombing Litig, 17 NY3d 428). Moreover, according to THE CITY, it is well-established that highway design is a quintessential, discretionary governmental function, and "that courts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits," citing Weiss v. Fote, (7 NY2d 579, 588).
With specific reference to plaintiff's claims, THE CITY argues that its Department of Transportation (hereinafter "DOT") conducted multiple studies as to the desirability of placing additional traffic lights along Van Duzer Street in the vicinity of plaintiff's injury, and that it was decided that none were warranted. Moreover, it is claimed that in response to subsequent community complaints and demands for changes at the intersection of Van Duzer Street and, e.g., Waverly Place, DOT conducted a "traffic channelization study", and several recommendations were made and considered. According to THE CITY, the subsequent decisions regarding the need for changes were made in the best engineering judgment of, e.g., DOT's traffic engineers based on (1) their education, experience and expertise, (2) their review of the studies conducted by DOT inspectors and (3) guidance provided by the US Manual of Uniform Traffic Control Devices (hereinafter MUTCD), a standard reference work. In this case, THE CITY claims that studies conducted by DOT in December 2004, May 2005 and October 2005, each indicated that MUTCD standards had been met, and that the installation of additional traffic signals at the subject location were deemed unwarranted. In further support of its claim of immunity, THE CITY points to the work of its Highway Design Unit, which also performs roadway studies in response to community complaints, and can effectuate changes in pavement markings in response to safety concerns. According to THE CITY, the Highway Design Unit works in conjunction with DOT, inter alia, to implement changes to THE CITY's traffic channelization plans, but cautions that changes in pavement markings cannot be implemented between November 17th and April 15th due to the adverse effect of cold weather on the thermoplastic marking material employed.
Based on all of the above, THE CITY argues that it has demonstrated, prima facie, that DOT (1) properly addressed community concerns regarding the subject intersection; (2) conducted the [*4]necessary studies; (3) considered alternative courses of action; and (4) made reasoned judgments regarding the need for additional traffic controls on Van Duzer Street. Under these circumstances, THE CITY claims that DOT's exercise of discretion concerning the need for changes at the subject intersection renders it immune from liability for plaintiff's injury.
In opposition, plaintiffs claim that as far back as August 2002, THE CITY determined that traffic surveys at or near the location of the subject accident needed to be performed, but that no studies were undertaken prior to December 2004, at which time only a "traffic signal study" was performed. According to plaintiffs, the failure to conduct a "traffic calming study" constituted a material omission, since the two studies are very different in nature and are performed by different people with different areas of expertise and experience. Moreover, plaintiffs allege that community pressure about the proliferation of speeding vehicles in the vicinity where plaintiff was injured prompted a second traffic signal study to be performed in October 2005, but again, no traffic calming study was performed. This was corrected in May 2005 when, e.g., the intervention of certain elected officials purportedly prompted the traffic issues affecting Van Duzer Street be given "top" priority. Plaintiffs maintain that only then did DOT conduct a traffic calming study.
According to plaintiffs, it was subsequently determined that due to the geometry of the roadway and the location of traffic control devices, Van Duzer Street was vulnerable to higher traffic volume, excessive speeding and crashes, all of which had purportedly been a source of citizen complaints and requests for action by DOT as early as 2002. Among other claims, it is plaintiffs' position, that changing the "two-lane, one-way" roadway to a "one-lane, one-way" roadway would have reduced speeding, and that improved street markings would have reduced the number of accidents and slowed the flow of traffic. Plaintiffs' further allege that if all these changes had been made prior to December 2, 2005, the subject accident could have been prevented.
Finally, plaintiffs argue that although DOT allegedly considered the traffic calming project on Van Duzer Street to be a high priority, implementation of the project was delayed from November of 2005, when decisions were made, until April of 2006 due to THE CITY's claim that the requisite pavement markings could not be installed during the cold temperatures associated with winter. This delay is claimed to have been negligent given the results of the traffic calming study.
In support of these various contentions, plaintiffs have submitted the affidavit of a highway engineering expert, Richard M. Balgowan, who opined, inter alia, that DOT failed to timely perform a traffic calming survey at the location in question, and that if action had been taken sooner, there would have been sufficient time before the onset of winter to make the changes in pavement markings that could have prevented plaintiff's accident. He further opined that DOT failed to implement the necessary changes in pavement markings, traffic channelization and signage in a timely manner even after it knew that such changes were needed.
With regard to the alleged failure to demonstrate a "special duty", plaintiffs contend that they are not required to plead or prove "special duty" in roadway design cases. In fact, they claim that it is well established in New York that plaintiffs can bring a tort action against the state or other governmental entity for injuries attributable to negligent highway design without any proof of a "special relationship".
As previously indicated, the motion is granted, and the complaint as against THE CITY is severed and dismissed.
The proponent of a summary judgment motion must make a prima facie showing of [*5]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 Hosp, 68 NY22d 320). Once that initial burden has been satisfied, it is incumbent upon the party opposing the motion to adduce sufficient evidence of the existence of triable issues of fact (id.). Consequently, the court's only role in deciding a motion for summary judgment is to determine whether any triable issues of fact exist. "[I]ssue finding, rather than issue-determination, is the key to the procedure" (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [internal quotation marks omitted]). Here, it is the opinion of this Court that THE CITY has met its prima facie burden of establishing its right to claim governmental function immunity, and that plaintiffs have failed to rebut that showing and raise any triable issues of fact (see Zuckerman v. City of New York, 49 NY2d 557)..
It is well established that a municipality has an absolute, non-delegable duty to the public to keep its streets in a reasonably safe condition (see Weiss v. Fote, 7 NY2d 579, 584). In measuring this duty, however, the courts have long recognized that their power to intrude upon a municipality's planning and decision-making functions with regard to its traffic control system is limited, and that under the doctrine of "qualified immunity", a governmental body may not be held liable for an injury arising out of a duly executed highway safety plan unless it was evolved without adequate study or lacked a reasonable basis. Contrariwise, "[u]nder the doctrine of qualified immunity, a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan'" (Marrow v. State of New York, 105 AD3d 1371, 1372 quoting Friedman v. State of New York, 67 NY2d 271, 280). Alternatively, liability may also be predicated upon the government's negligent failure to implement a remedial planning decision once it has been made, or to review its traffic control plan in the light of actual experience (see Brown v. State of New York, 79 AD3d 1579, 1584). In any event, it must also be proved that the government's negligent failure was a proximate cause of the injury in order for liability to attach.
At bar, the proof submitted by THE CITY in support of its application includes, inter alia, the EBT transcripts of (1) DOT's Highway Transportation Specialist, (2) the Staten Island Borough Commissioner, and (3) DOT's Chief of Highway Design. Also before the Court are records from THE CITY's Department of Highway Design, an August 2002 request for traffic light or traffic calming studies, copies of traffic surveys conducted during 2004 and 2005 (which include an intersection control analysis of the subject intersection); copies of accident reports, area maps, condition diagrams; volume classification and turning counts, traffic light warrant analyses; a four-hour vehicular volume study; an intersection delay study; a signage study; and pedestrian volume and school crossing information. All of this proof, which is essentially unrebutted, indicates that THE CITY responded in meaningful ways to, e.g., civilian complaints about the flow of traffic on Van Duzer Street, including the performance of multiple traffic signal studies from which it was determined that additional traffic control signals were not warranted. Thereafter, supplemental studies were conducted and modification proposals continued to be exchanged between DOT, the Department of Highway Design and the Borough Commissioner's office. These studies produced various recommendations during the ensuing years, including "scarification" of the roadway surface in the hopes of reducing vehicle speeds and to ameliorate pedestrian safety. Ultimately, after much consideration, a traffic calming plan was agreed upon, and THE CITY has submitted EBT testimony explaining the delays in its implementation due to weather conditions. This, too, is substantially unrebutted. [*6]
In the opinion of this Court, all of the above is sufficient to establish prima facie that the various decisions regarding traffic conditions on Van Duzer Street in the vicinity of plaintiff's injury were the result of multiple studies and a reasoned analysis of the survey results obtained by DOT, and that its implementation was only delayed by the time needed to develop a cohesive traffic control plan and install the appropriate pavement markings. This proof of an ongoing "deliberative decision-making process" (Boyd v. Trent, 262 AD2d 260, 261 [internal quotation marks omitted]) constitutes strong evidence of THE CITY's right to claim governmental function immunity in this case. As stated in Weiss v. Fote , "the courts [will] not go behind the ordinary performance of planning functions by the officials to whom those functions are entrusted....To accept a jury's verdict as to the reasonableness and safety of a plan of governmental servants and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts.... [S]omething more than a mere choice between [the] conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public" (7 NY2d at 584-586, 588); cf. Brown v. State of New York, 79 AD3d at 1584-1585 [qualified immunity will not operate to shield a governmental entity from liability where it unreasonably neglects its continuing duty to review its traffic plans in light of actual experience and respond reasonably to ameliorate known dangers]).
In opposition, plaintiffs' have failed to adduce admissible evidence sufficient to rebut THE CITY's prima facie showing and raise a triable issue of fact as to the defense of qualified immunity. In this regard, plaintiffs' attempt to style as negligent DOT's delay in conducting a traffic calming study is merely a collateral attack on THE CITY's decision-making process, which has not been shown to be inadequate or unreasonable. The same is true of the opinion of plaintiff's traffic expert, whose criticism is not only lacking in any factual basis, but is legally insufficient to support a claim of deficient planning and/or flawed decision-making (see Weiss v. Fote, 7 NY2d at 588). Finally, the attempt by both plaintiffs and their expert to attribute the subject accident to THE CITY's purported delay in changing the pavement markings on Van Duzer Street is wholly speculative and therefore, of no probative value.
With regard to plaintiff's claims under the Labor Law, it is well settled that section 241(6) imposes a nondelegable duty upon an owner or general contractor to provide reasonable and adequate protection and safety to persons employed in construction, excavation, or demolition work (see Allen v. Cloutier Constr. Corp., 44 NY2d 290, 300-301). Here, there is simply no evidence that plaintiff's activities at the time of his injury fell within any of the aforementioned categories. To the contrary, as plaintiff testified at his EBT, his job at the time of his injury was to inspect and evaluate a junction pole for his employer, Con Edison, in order to see if it needed to be replaced, or to make any necessary repairs. Therefore, according to his own testimony, plaintiff was not participating in any construction, excavation or demolition work when the accident occurred, and had, in fact, finished his inspection when the injury occurred. Accordingly, plaintiff's Labor Law §241(6) claims are totally without merit (see Nagel v. D & R Realty Corp, 99 NY2d 98, 101 [Labor Law §241(6) was "meant to protect workers engaged in duties connected to the inherently hazardous work of construction, excavation or demolition" rather than other types of work]).
It is similarly well settled that Labor Law §200 represents a codification of the common-law [*7]negligence standard of care, imposed upon an owner or general contractor with supervision or control over the worksite to provide workers with a safe place to work. Accordingly, in the absence of any dangerous condition on the premises which causes an injury, an owner who exercises no control or supervision over the operation out of which it arises is not subject to liability (see Lombardi v. Stout, 80 NY2d 290, 294).). Here, there is no credible evidence that THE CITY supervised or controlled the manner in which plaintiff performed his work. Moreover, insofar as it has been suggested that THE CITY was aware of and failed to timely correct the purported traffic hazard on Van Duzer Street, the doctrine of qualified immunity has already been held to insulate THE CITY from any liability based on a theory of, e.g., defective roadway design creating a dangerous condition affecting the safety of plaintiff's worksite.
In view of the above, there is no need to consider any further issue.
Accordingly, it is
ORDERED that the motion of defendant THE CITY OF NEW YORK for summary judgment and dismissal of the complaint as against it is granted; and it is further
ORDERED that the complaint and any cross claims against the above-named defendant are severed and dismissed; and it is further
ORDERED that the Clerk enter judgment accordingly.
E N T E R,
__/s/____________________________
Hon. Thomas P. Aliotta
J.S.C.
Dated: September 18, 2013
Footnotes
Footnote 1: The claims of plaintiff Maureen Rosko, Leonard Rosko's wife, are purely derivative in nature.
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