Cancellaro v. Shults, 2009 NY Slip Op 30561 (N.Y. Sup. Ct. 2/5/2009)

• Decision Date: 05 February 2009
• Docket Number: Index No. 06-41
• Citation: Cancellaro v. Shults, 2009 NY Slip Op 30561 (N.Y. Sup. Ct. 2/5/2009), 2009 NY Slip Op 30561, Index No. 06-41 (N.Y. Sup. Ct. Feb 05, 2009)
• Parties: ROBERT CANCELLARO, as Guardian ad Litem for DESTANY CANCELLARO and JAZZMINE GOMEZ, Plaintiff, v. JOHN R. SHULTS, III, THE CITY OF KINGSTON and ANGELINA VELEZ, Defendants.
• Court: New York Supreme Court

Page 1

2009 NY Slip Op 30561

ROBERT CANCELLARO, as Guardian ad Litem for DESTANY CANCELLARO and JAZZMINE GOMEZ, Plaintiff, v.JOHN R. SHULTS, III, THECITY OF KINGSTON and ANGELINA VELEZ, Defendants.

Index No. 06-41

Supreme Court of the State of New York, Ulster County.

February 5, 2009

All Purpose Term, Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding, RJI: 55-06-01740 Index No. 06-41.

Basch & Keegan, LLP, Kingston, NY, (Derek J. Spada, Esq., of Counsel), Attorneys For Plaintiff.

Friedman, Hirschen & Miller, LLP, John R. Shults, III, Albany, NY, (Carolyn B. George, Esq., of Counsel), Attorneys For Defendant.

Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston, NY, (Robert D. Cook, Esq., of counsel), Attorneys For The City of Kingston.

DECISION/ORDER

George B. Ceresia, Jr., Justice

The above-captioned action arises out of a very serious motor vehicle accident which occurred on Hurley Avenue in the City of Kingston, New York on December 21, 2004 at approximately 8:42 a.m. of that day.Angelina Velez("Velez") was operating her motor vehicle in a southerly direction on Hurley Avenue.With her were her two children, the infant plaintiffs, Destany Cancellaro(then age 1), and Jazzmine Gomez(then age 7).It is undisputed that at some point Ms. Velez lost control of her vehicle, which then entered the on-coming lane where it was struck by a vehicle operated by defendantJohn R Shults, III("Shults")¹.The plaintiff alleges, inter alia, that the City of Kingston was negligent with regard to the maintenance of Hurley Avenue, and with regard to the absence of signs warning of a dangerous curve in the road.The plaintiff alleges that defendant Shults was negligent in the operation of his vehicle.Both said defendants have made motions for summary judgment.

Defendant Velez testified at her pre-trial deposition that she has no independent recollection of how the accident occurred.That morning she was driving her daughter Jazzmine to school.It was cold out, but there was no precipitation.Jazzmine was in the back seat behind the driver's seat, and was secured by a seat belt.Destany was in the middle of the back seat secured by a car seat.Velez remembers going under a New York State Thruway overpass.She remembers observing some icy patches on the road At some point she felt a "smack" in her face.She did not immediately realize that her vehicle had been involved in a motor vehicle accident.Her car came to rest in the northbound lane of Hurley Avenue.

Defendant Shults testified at his pre-trial deposition that he had left his house on Hurley Avenue minutes prior to the accident.He was traveling northbound on Hurley Avenue.He first saw the Velez vehicle as it came around a bend in the road.He estimated that at that point the Velez vehicle was seventy-five feet away from his vehicle.He indicated that he was traveling twenty-five or thirty miles per hour.He estimated that the Velez vehicle was traveling in excess of forty-five miles per hour, and that the car was traveling so fast that it was tipping as it went around the curve.He testified that about two seconds transpired from the time he first saw the Velez vehicle until the collision.The Velez vehicle came into his travel lane, and the front of his vehicle struck the passenger side of the Velez vehicle.The collision took place at a point in the center of his lane.Defendant Shults testified that after the accident (while still at the accident scene)defendant Velez told him that just before the accident Velez had turned around screaming at her daughter, and told her daughter to shut up.According to Shults, Velez indicated to him that when she looked up she was heading off the road; and the next thing she knew her vehicle struck Shults' vehicle.

Turning first to the motion of the City of Kingston, as a part of its argument, said defendant maintains that the plaintiffs failed to comply with its prior written notice statute, which is a condition precedent to commencement of an action.It is well settled that "prior written notice laws are a valid exercise of legislative authority"(Amabile v City of Buffalo, 93 NY2d 471[1999], at p. 473, citingFullerton v City of Schenectady, 285 App Div 545, affd309 NY 701, appeal dismissed350 US 980, andHolt v County of Tioga, 56 NY2d 414)."Thus, in derogation of the common law, a locality may avoid liability for injuries sustained as a result of defects or hazardous conditions ... if it has not been notified in writing of the existence of the defect or hazard at a specific location"(Amabile v City of Buffalo, supra, at p. 474, citingDoremus v Incorporated Vil. of Lynbrook, 18 NY2d 362, 366).The City of Kingston has submitted a copy of Article XVII, § C17-1 of the Kingston City Charter which requires prior written notice of enumerated unsafe or dangerous conditions in any street or highway as a condition precedent to commencement of an action against the City for damages.The City has also submitted the affidavit of its City Clerk, Kathy Janeczek, in which she indicates that she made a search of the records in the City Clerk's Office and found that the City of Kingston had not received written notice of a defective condition in the location where the accident occurred prior to December 21, 2004.Notwithstanding the foregoing however, it is also well settled that prior written notice statutes do not apply to highway traffic devices and signs (seeAlexander v Eldred, 63 NY2d 460[1984], at 467;Herzog v Schroedet, 9 AD3d 669, 671[3d Dept., 2004];Norton v Village of Endicutt, 280 AD2d 853, 854-855[3d Dept., 2001];Mosher v Town of Oppenheim, 263 AD2d 605, 606[3d Dept., 1999]: Bova v County of Saratoga, 258 AD2d 748, 749[3d Dept., 1999];Akley v Clemons, 237 AD2d 780, 781-782[3d Dept., 1997]).

The Court finds that the City satisfied its burden of proof on the motion by demonstrating the existence of the prior written notice requirement in its City Charter together with the affidavit of its City Clerk that no such notice had been received.In the absence of a triable issue of fact, the Court that plaintiffs complaint must be dismissed with regard to all causes of action related to a dangerous condition existing in Hurley Avenue at the accident site, other than those related to the adequacy of highway traffic signs.

It is well settled that municipalities have a duty to maintain their highways in a reasonably safe condition, subject to a qualified immunity arising from highway planning decisions (seeFriedman v State of New York, 67 NY2d 271, 283[1986];see alsoWinney v County of Saratoga, 8 AD3d 944, 944-945[3d Dept., 2004]).Thus, `"[a] governmental body may be liable for a traffic planning decision only when its study is "plainly inadequate or there is no reasonable basis for its [ ] plan'"(Affleck v Buckley, 96 NY2d 553, 556[2001], quotingFriedman v State of New York, supra, and citing Weiss v Fote, 7 NY2d 579: see alsoRacalbuto v Redmond, 46 AD3d 1051, 1052-1053[3^rd Dept., 2007]).With regard to highway signing it is also well settled that the absence of a warning sign will not be deemed a proximate cause of a motor vehicle accident where the driver possessed intimate knowledge of the highway (seeBoucher v Town of Candor, 234 AD2d 669, 671[3d Dept., 1996]).As stated in Gilberto v Town of Plattekill, 279 AD2d 863[3d Dept., 2001]lv denied96 NY2d 710[2001]):

"Fundamentally, the absence of a warning sign or other traffic control device or highway marking may be excluded as a cause of an accident "if the driver's awareness of the physical conditions prescribed the same course of action as the warning sign would have, [or] if the driver, by reason of bis recollection of prior trips over the same road, `actually had the danger in mind' as he approached it on the highway"(Gilberto v Town of Plattekill, supra, at 864, citations omitted;see alsoWinters v Town of Germantown, 20 AD3d 713, 714-715[3^rd Dept., 2005];Alber v State, 252 AD2d 856, 856-857[3d Dept., 1998]).

The City points out that Velez conceded at her pre-trial deposition that she was very familiar with Hurley Avenue, having traveled it twice a day while taking her daughter Jazzmine to and from school, from the beginning of the school year to the date of the accident.Velez acknowledged at her pre-trial deposition that as she was driving from Kingston to Hurley she"knew which way the road would turn as [she] would proceed on it..."; and that she knew this on the morning of the accident.The Court finds that the City demonstrated, prima facie, that the absence of adequate warning signs with regard to the curve in Hurley Avenue was not a proximate cause of the accident, due to Velez's intimate knowledge of Hurley Avenue.In the absence of a triable issue of fact, the Court finds that the City is entitled to summary judgment on this issue as well.The Court concludes that the complaint, and all cross-claims must be dismissed as against the City².

Turning to the motion for summary judgment of defendant Shults, said defendant maintains that the sole proximate cause of the accident was the negligent driving of Velez.In addition, he argues that he was confronted with an emergency situation which did not provide time for him to avoid the accident.

Under the common-law emergency doctrine, where a person is confronted with a sudden and unexpected situation which leaves little or no time for thought, deliberation or consideration, he or she may not be negligent if the actions taken are deemed reasonable within the context of the emergency, provided the actor has not created the emergency (Caristo v Sanzone, 96 NY2d 172, 174[2001], citingRivera v New York City Tr. Auth., 77 NY2d 322, 327)."`Furthermore, merely encountering an emergency does not completely absolve one from liability; it simply requires that one's conduct be measured against that of a reasonable person confronted with similar circumstances in a...