Aragona v Ionis

[*1] Aragona v Ionis 2013 NY Slip Op 51560(U) Decided on September 18, 2013 Supreme Court, Richmond County Aliotta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 18, 2013
Supreme Court, Richmond County

Anthony Aragona, THERESA ARAGONA and THE ESTATE OF MARY TOPPINO, by DANIEL TOPPINO, Executor, Plaintiffs,

against

Sima Ionis, VLADIMIR IONIS, ANNMARIE ARAGONA, THE CITY OF NEW YORK and THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, Defendants.



101679/11

Thomas P. Aliotta, J.

The following papers numbered 1 to 4 were fully submitted this 17th day of

July, 2013

Papers

Numbered

Notice of Motion by Defendants The City of New York and

The New York City Department of Transportation to Dismiss

the Complaint and for Summary Judgment, with Supporting Papers

(dated March 18, 2013)........................................................................................ 1

Plaintiffs' Affirmation in Opposition

(dated April 15, 2013)........................................................................................... 2

Affirmation in Opposition by Defendants Sima Ionis and Vladimir Ionis

(dated April 18, 2013)........................................................................................... 3

Reply Affirmation by Defendants The City of New York and

The New York City Department of Transportation

(dated July 15, 2013)............................................................................................ 4

Upon the foregoing papers, the motion of defendants The City of New York and The New York City Department of Transportation (hereinafter, collectively, the "City") to dismiss the complaint pursuant to CPLR 3211(a)(7), or in the alternative, for summary judgment pursuant to CPLR 3212 is granted. [*2]

This personal injury action arises out of a motor vehicle accident that occurred on November 27, 2010 at the intersection of Steuben Street and Hylan Boulevard in Staten Island, New York. Plaintiff Anthony Aragona was a front seat passenger in an automobile owned and operated by his daughter, defendant Annmarie Aragona. Plaintiffs Theresa Aragona and Mary Toppino were rear seat passengers. It is undisputed that immediately prior to the accident, defendant Aragona's vehicle was proceeding in a westbound direction on Hylan Boulevard, while a second vehicle owned by defendant Vladimer Ionis and operated by defendant Sima Ionis was proceeding simultaneously in the opposite direction, i.e., in an eastbound lane. A collision occurred between the two vehicles when the Ionis vehicle attempted to make a left-hand turn across the westbound lanes of Hylan Boulevard onto Steuben Street, resulting in the death of Mary Toppino, and personal injuries to plaintiffs Anthony and Theresa Argona.

In the notice of claim and complaint, it is alleged that the City was negligent in the design, installation, maintenance, operation and/or control of traffic safety devices at the subject intersection. More specifically, plaintiffs maintain that since Hylan Boulevard is a divided arterial roadway with three lanes of traffic in each direction, and Steuben Street intersects Hylan Boulevard at an oblique angle of approximately 126 degrees, drivers on Hylan Boulevard could easily be confused by the configuration of this intersection into believing that they retain the right-of-way to turn left onto Steuben Street even after the green arrow authorizing a left-hand turn has been extinguished. In support of their negligence claims, plaintiffs assert that notwithstanding the numerous accidents (two of which involved fatalities) that had previously occurred at this specific intersection, and the City's receipt of prior written notice of the hazard, it failed to conduct an adequate study to determine what reasonable measures could be taken to address the dangerous traffic condition extant at the accident site.

In addition, it is alleged that the City failed to take corrective action in a reasonable and timely manner after its own investigations disclosed the desirability of adding a red arrow prohibiting drivers from turning left onto Steuben Street once the opposing traffic had started to flow. According to plaintiffs, this hazardous roadway configuration was not made safe by the City until the installation of a so-called "protected only" left-turn arrow on December 4, 2010, i.e., seven days after the accident and 14 months from the date of its initial study dated September 20, 2009 following the first fatality.

In moving to dismiss the complaint for failure to state a cause of action or, in the alternative, summary judgment, the City contends that roadway design is a quintessential governmental function which provides the municipal defendants with functional immunity for its "discretionary decision-making" in the design of the subject roadway. The City further contends that plaintiffs have failed to plead and/or demonstrate the existence of a special duty, the absence of which precludes the imposition of liability upon the municipal defendants as a matter of law. In any event, it is argued that the City did not, as plaintiff contends, unjustifiably delay in implementing a change in the traffic pattern at the subject location.

In order to demonstrate that adequate studies and reasonable measures were undertaken in a timely manner, the City relies upon the deposition testimony of four [*3]Department of Transportation (hereinafter, "DOT") witnesses: the Deputy Director of the Signal Timing Unit, the Director of Signal Design, the Supervisor of the Safe Team, and the Staten Island Borough Commissioner. According to the City, the undisputed deposition testimony of these witnesses, together with their voluminous reports and records relating to the subject intersection, establish, inter alia, that prior to the date of the subject accident, DOT conducted several studies of the intersection in question, including studies initiated in direct response to the two prior vehicular fatalities that occurred, respectively, on June 22, 2009 and August 8, 2010. In particular, the City argues that it has been proven that shortly after the 2009 fatality, DOT's Safe Team undertook an investigation of the site in order to confirm that proper signage, markings and controls were in place at the subject intersection, and that after taking accurate measurements, photographs, and a sample volume count, it reported its findings to the New York City Police Department (hereinafter, "NYPD") and recommended in its September 2009 report that "stop bars" be installed and crosswalks upgraded to high visibility materials in an effort to enhance safety. Moreover, the City maintains that it has been proven that in response to civilian complaints and correspondence from the Office of Council Member James S. Oddo, the Staten Island Borough Engineer's Office conducted an independent study of the subject intersection, after which missing warning signs were re-installed. It is further claimed that in response to the second vehicular fatality on August 8, 2010, DOT's Safe Team commenced another investigation, this time referring the matter to DOT's Signal Unit to perform a "traffic study", i.e., to review the traffic signals in place at the subject intersection. In addition, there is evidence that DOT had "discussions" with the NYPD in late 2009 and early 2010, during which it was concluded that "speeding" was an issue at this "accident-prone" location, prompting increased enforcement efforts by the NYPD. The Borough Engineer's Office was also contacted in order to recommend that a further study be conducted in an effort to develop other feasible improvements to the roadway design.

In apparent response to these initiatives, representatives from the Borough Engineer's Office visited the subject location and initiated a "formal study" of the intersection on June 9, 2010 (prior to the second fatality), which included "taking volume classification and turning counts". As a consequence, it was determined that the installation of a "protected only" red signal prohibiting left-hand turns from Hylan Boulevard onto Steuben Street was warranted in place of the existing signal permitting left-hand turns during pre-determined intervals. Nevertheless, it was made clear by the City's witnesses that the proposed change could not be made without input from other DOT units in order to coordinate same with, e.g., the need to redesign pavement markings and alter signal phasing, both of which required further studies. For example, following the second vehicular fatality on August 8, 2010 and in response to, e.g., the Borough Engineer's earlier recommendation, DOT's Signal Operation Unit was asked to study the proposed modification to the traffic signals at the subject location, which resulted in a "Left Turn [Signal] Analysis" that was prepared on August 26, 2010 (i.e., less than three weeks after the second fatality). In that analysis, the Signal Operation Unit concluded that the operation of the left-turn signal should be changed from one "permitting" left-hand turns after the green arrow had been extinguished to a red arrow prohibiting such turns. Corresponding evaluations by [*4]DOT's Planning Division, Geometric Design Division, and Safety Division followed, after which the proposed modification was determined to be feasible. As previously noted, the uncontroverted deposition testimony of the City's witnesses indicate that the coordination of these various units was necessary in order to implement the proposed changes. Also unrebutted is the testimony establishing that the revised phasing of the traffic signals at the subject intersection was effectively completed (i.e., "diagramed") on October 21, 2010, and installed on December 4, 2010, a span of less than two months where three to six months was "normally" required.

It is well settled that "[i]n the area of traffic design engineering, a municipality will generally be accorded qualified immunity from liability arising out of its highway planning decisions. However, a municipality may be held liable if, after being made aware of a dangerous condition, it does not undertake an adequate study to determine what reasonable measures may be necessary to alleviate the condition, or, having determined what reasonable measures were necessary, it unjustifiably delays in taking them" (Bresciani v County of Dutchess, 62 AD3d 639, 640 [citations omitted]; see Friedman v State of New York, 67 NY2d at 284-286). In this regard, "[t]he doctrine...serves to preclude second-guessing relating to the considered planning decisions of governmental bodies" (Jackson v New York City Tr. Auth., 30 AD3d 289, 290). Nevertheless, it has been held that in order to establish its entitlement to qualified immunity, "the [City] must demonstrate that a public planning body considered and passed upon the same question of risk as would go to a jury in the case at issue" (id.; see Ernest v Red Cr. Cent. School Dist., 93 NY2d 664, 673).

In the present case, the municipal defendants have made the requisite prima facie showing by the submission of voluminous records and documents supportive of the deposition testimony of its witnesses to the effect that extensive investigations and studies of the subject intersection were initiated by the appropriate governmental agencies soon after the first motorist fatality in June of 2009, and in response to the continued public expression of concern regarding the safety of motorists and pedestrians attempting to negotiate the subject intersection. Moreover, although DOT's Safe Team admittedly did not include the adequacy of the then-existing traffic control devices as part of its initial investigation, it cannot be found on the papers presently before the Court that this decision was arbitrary or lacking in a reasonable basis (see generally Dahl v State of New York, 45 AD3d 803, 805). Here, according to the undisputed deposition testimony of the Supervisor of the Safe Team, it responded to the report of the first fatality on June 22, 2009 by the prompt dispatch of an inspector to the subject intersection to perform a routine investigation, e.g., to collect data concerning the condition of the roadway at the accident site. The Supervisor further testified that when conducting such inspections, the DOT investigator will typically note only whether the existing traffic control devices "are present and functioning", and that a traffic signal timing study is not normally included unlessthe timing or length of the traffic signal has been reported by the first responders to be a contributing factor to the accident, which did not occur in the case at bar. This testimony is also undisputed, as is the testimony indicating that (1) an analysis of the traffic control devices was initiated shortly after the occurrence of the second fatality in August 2010; (2) this study was completed on or about August 26, 2010, when changes to the traffic signals [*5]were recommended; (3) a revised signal plan was approved in October 2010; and (4) the changes were implemented on or about December 4, 2010.

Based on the foregoing proof, and contrary to plaintiffs' contention, neither the Safe Team's omission of a traffic signal timing study in June of 2009, nor the time taken to implement the changes once the decision to make them had been finalized, has been shown to be arbitrary, unreasonable or the product of untoward delay (see Friedman v State of New York, 67 NY2d at 284; Weiss v Fote, 7 NY2d 579, 586; Reisner v Litman & Litman, P.C., 95 AD3d 858, 859; Onorato v City of New York, 258 AD2d 633, 633-634; cf. Jackson v New York City Transit Authority, 30 AD3d at 290). Our courts have long been enjoined not to substitute their judgment for the municipality's considered decisions in the area of traffic safety "under the guise of allowing them to be challenged in negligence suits" (Weiss v Fote, 7 NY2d at 588). As for the various municipal agencies which participated in the decision, it is clear that they "entertained and passed on the very same question of risk as would go to the jury" in this case (Weiss v Fote, 7 NY2d at 588; see Affleck v County of Nassau, 96 NY2d 553, 557), i.e., the necessity of changing the left-turn signal at the intersection in question to prohibit left-hand turns onto Steuben Street when on-coming traffic is permitted to proceed through the intersection.

In opposition to the City's motion, plaintiffs' have failed to raise an issue of fact regarding, e.g., the reasonableness and adequacy of the City's investigations and studies following the prior fatalities (see Friedman v State of New York, 67 NY2d at 283; Reisner v Litman & Litman, P.C., 95 AD3d at 859). As the Court of Appeals has only recently reiterated "something more than a choice between conflicting opinions of experts is required before a governmental body may be held liable for negligently performing its traffic planning function" (Affleck v County of Nassau, 96 NY2d at 557).[FN1]

Accordingly, it is [*6]

ORDERED, that the motion of defendants The City of New York and The New York City Department of Transportation for, inter alia, summary judgment is granted, and the complaint and any cross claims as against the foregoing defendants is hereby severed and dismissed; and it is further

ORDERED, that the Clerk enter judgment accordingly.

E N T E R,

Dated: September 18, 2013__/s/______________________

Hon. Thomas P. Aliotta

J.S.C. Footnotes

Footnote 1:In deciding this motion, the Court is well aware of the recent decisions by the Court of Appeals suggesting that when a municipality is sued in tort arising out of the performance of a governmental function, the first question normally to be decided is whether the municipality owed a "special duty" to the injured party (see e.g. Applewhite v Accuhealth, Inc., __ NY3d __, NY Slip Op 4727, **3-4), i.e., whether the duty allegedly breached is "more than one owed [to] the public generally" (id. at **4, quoting Valdez v City of New York, 18 NY3d 69, 75; Metz v State of New York, 20 NY3d 175, 179). However, these recent cases have yet to afford that Court any occasion to consider the requirement of "special duty" in the context of purportedly negligent roadway design, where the duty allegedly breached by the municipality is that owed to the public generally to maintain its roads in a reasonably safe condition, and where the burden of demonstrating the existence of a special duty will prove virtually insurmountable. Lacking specific guidance on this issue, the Court has relied upon the doctrine of "qualified immunity" heretofore applied routinely in matters of this sort (see e.g. Friedman v State of New York, 67 NY2d 271 [1986]; Reisner v Litman & Litman, PC, 95 AD3d 858 [2nd Dept 2012]; see also Affleck v County of Nassau, 96 NY2d 553 [2001]).