Burgess v. Town of Hempstead

• Decision Date: 14 May 1990
• Citation: 555 N.Y.S.2d 396,161 A.D.2d 616
• Parties: Mark BURGESS, Respondent, v. TOWN OF HEMPSTEAD, et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 396

555 N.Y.S.2d 396

161 A.D.2d 616

Mark BURGESS, Respondent, v. TOWN OF HEMPSTEAD, et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division,

Second Department.

May 14, 1990.

Rivkin, Rader, Dunne & Bayh, Uniondale (Evan H. Krinick, of counsel), for appellant Town of Hempstead.

Mulholland, Minion & Roe, Williston Park (Paul M. Duffy, of counsel), for appellant Village of Freeport.

Mulhern & Klein, Wantagh (Patrick J. Mulhern, Jr., of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, KUNZEMAN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, the defendant Town of Hempstead appeals from so much of an order of the Supreme Court, Nassau County (Murphy, J.), dated November 10, 1987, as denied its motion for summary judgment dismissing the complaint and all cross claims as against it, and the defendant Incorporated Village of Freeport separately appeals from so much of the same order as denied its motion for summary judgment dismissing the complaint and cross claims as against it except to the extent that they state claims of negligence relating to physical defects in the roadway.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

On August 16, 1983, the plaintiff was injured when he lost control of his motorcycle while attempting to negotiate a curve which was located on Pennsylvania Avenue at or near the boundary line between the municipal defendants, the Town of Hempstead and the Incorporated Village of Freeport. The plaintiff had been driving northbound on Pennsylvania Avenue, from the village to the town. He had never before driven on this portion of roadway. Both municipalities maintained signs on both sides of the boundary line that controlled traffic around the curve in the road.

Prior to this accident, the town had received a written notice concerning this stretch of roadway. An interdepartment memo concerning this complaint noted that the curve was dangerous because the town's 25 mile-per-hour sign, which was posted about 50 feet from the angle break on the east side of Pennsylvania Avenue and about 40 feet south of the aforementioned boundary line, i.e., within the boundaries of the village, "apparently does not slow the traffic down". The town's investigator, however, believed he was only checking for damaged signs and did not perform a test to determine the curve's safe speed.

The plaintiff brought suit, inter alia, against the town and village, alleging that these defendants had failed to properly inspect the roadway and develop a reasonably safe traffic plan and had failed to install and properly place adequate and necessary traffic control devices and signs. The municipal defendants separately moved to dismiss the complaint and any cross claims as against them. The town's motion was denied altogether, and the village's motion was denied, except as to allegations against it concerning physical defects in the roadway which were dismissed.

The town argues that it cannot be held liable for its highway planning decision. While a qualified immunity does exist for governmental bodies in the field of traffic safety design and planning (see, Scheemaker v. State of New York, 70 N.Y.2d 985, 526 N.Y.S.2d 420, 521 N.E.2d 427; Friedman v. State of New York, 67 N.Y.2d 271, 502 N.Y.S.2d 669, 493 N.E.2d 893; Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63; Longo v. Tafaro, 137 A.D.2d 661, 524 N.Y.S.2d 754), a governmental body may still be held liable, when, inter alia, its study of a traffic condition is plainly inadequate or lacks a reasonable basis (see, Scheemaker v. State of New York, supra; Friedman v. State of New York, supra, 67 N.Y.2d at 284, 502 N.Y.S.2d 669, 493 N.E.2d 893; Longo v. Tafaro, supra, 137 A.D.2d at 663, 524 N.Y.S.2d 754). In this case, the record contains sufficient proof to create...