Chang v. City of N.Y.

• Decision Date: 04 August 2016
• Parties: Kevin CHANG, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents, Robert Gomez, Defendant.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 401
37 N.Y.S.3d 236

Kevin CHANG, Plaintiff–Appellant,
v.
The CITY OF NEW YORK, et al., Defendants–Respondents,

Robert Gomez, Defendant.

Supreme Court, Appellate Division, First Department, New York.

Aug. 4, 2016.

37 N.Y.S.3d 237

Frank J. Laine, P.C., Plainview (Frank Braunstein of counsel), for appellant.

Corporation Counsel, New York (Zachary W. Carter of counsel), and Kaye Scholer LLP, New York (Danelco Moxey of counsel), for the City of New York, respondent.

Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for Fund for Park Avenue (New York), Inc., respondent.

Gorton & Gorton, LLP, Mineola (John T. Gorton of counsel), for City–Scape Landscaping, respondent.

SWEENY, J.P., ACOSTA, MANZANET–DANIELS, GISCHE, GESMER, JJ.

142 A.D.3d 401

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered September 9, 2014, which, upon reargument, adhered to its original decision granting defendant City of New York's motion for summary judgment dismissing the complaint as against it, modified on the law, to deny the City's motion for summary judgment and to reinstate the complaint as against it, and otherwise affirmed, without costs. Orders, same court (Arlene P. Bluth, J.), entered March 24, 2015, which granted defendants Fund for Park Avenue (New York), Inc.'s and City–Scape Landscaping's motions for summary judgment

37 N.Y.S.3d 238

dismissing the complaint as against them, affirmed, without costs.

In this case arising from a motor vehicle accident, plaintiff alleges that defendant City is liable for his injuries because the intersection at Park Avenue and East 65th Street lacked a "stop here on red sign" and a stop bar. Plaintiff also alleges that the City and defendants Fund For Park Avenue (New York), Inc., and City–Scape Landscaping are liable for his injuries, because they were responsible for maintenance of the foliage in the center median at the subject intersection and that he was prevented from seeing oncoming traffic because the foliage was overgrown.

In 1996, the City had determined that "stop here on red" signs, with a stop bar, should be placed at the Park Avenue intersection where plaintiff was involved in a 2008 motor vehicle accident that also resulted in his girlfriend's death. It is undisputed that although those signs were present at the

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intersection less than two months prior to the accident, they were not present on the date of the accident and a stop bar was never installed.

The state has a nondelegable duty to maintain the roadway in safe condition (see Friedman v. State of N.Y., 67 N.Y.2d 271, 283, 502 N.Y.S.2d 669, 493 N.E.2d 893 [1986] ; Deringer v. Rossi, 260 A.D.2d 305, 689 N.Y.S.2d 68 [1st Dept.1999] ). The installation of a traffic control signal, where it had not previously existed, is a discretionary governmental function that does not give rise to state liability ( Cimino v. City of New York, 54 A.D.2d 843, 388 N.Y.S.2d 276 [1st Dept.1976], affd. 43 N.Y.2d 996, 404 N.Y.S.2d 595, 375 N.E.2d 775 [1978] ). However, liability is imposed where there is a "failure properly to maintain an already established [traffic] control" and where that failure was a proximate cause of the accident ( Cimino, 54 A.D.2d at 844, 388 N.Y.S.2d 276 ). In Eastman v. State of New York , 303 N.Y. 691, 103 N.E.2d 56 (1951), the State had maintained a stop sign but then ordered the sign to be removed pursuant to a survey by the State Traffic Commission four years prior to the accident. The Court of Appeals held that the State's failure "to maintain adequate signs or other proper traffic control" resulted in a breach of duty and was a proximate cause of the accident ( id. at 692, 103 N.E.2d 56 ; compare Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63 [1960] [distinguished on different facts] ). The Court clarified that, had the traffic control sign been present in Eastman, "the driver would have obeyed it and avoided the accident" ( Applebee v. State of New York, 308 N.Y. 502, 507, 127 N.E.2d 289 [1955] ).

The dissent opines that the City is not liable because plaintiff's own action eliminated any alleged negligence by the City as a proximate cause of his accident. However, the Court of Appeals, in Applebee, stated that the State can be held liable where it failed to repair or replace a missing traffic control sign, particularly where the driver had never been at the intersection and therefore lacked the notice of danger that a stop sign would have provided. Although the Court in that case held that the State's failure to replace a missing stop sign, which had been knocked down as a result of an accident that occurred seven weeks before, was not the proximate cause of the accident, Applebee is distinguishable on its facts. In Applebee, the driver, who was on her way home after visiting a friend on a Sunday afternoon, was familiar with the road and route and "was fully aware of the dangerous intersection and of the need to stop" ( id. at 507, 127 N.E.2d 289 ). Specifically, the driver was returning by the same route by which she had come and "knew that it was heavily traveled by automobiles at high speeds"

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( id. at 506, 127 N.E.2d 289 [internal quotation marks omitted] ). The Court found that because the driver had "all the warning[ ][and] all the notice

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of danger, that a stop sign would have afforded," the State's failure to replace the sign did not proximately cause the accident ( id. at 508, 127 N.E.2d 289 ).

The Court of Appeals distinguished Applebee from cases in which the drivers had never been at the intersections before the accident and therefore had no familiarity with the dangerous conditions and of the need to stop. In Murphy v. De Revere , 304 N.Y. 922, 110 N.E.2d 740 (1953) and Nuss v. State of New York , 301 N.Y. 768, 95 N.E.2d 822 (1950), "two cases involving night collisions at unfamiliar crossings[,] it was the very absence of the stop sign which rendered the drivers unaware of the need to stop before proceeding across the intersection" and proximately caused the accidents ( Applebee, at 507, 127 N.E.2d 289 ). Similarly, the Court in Rose v. State of New York , 19 A.D.3d 680, 800 N.Y.S.2d 26 (2d Dept.2005) held that the driver's "familiarity with the ramp, coupled with his excessive speed" eliminated any negligence by the State as a proximate cause of the accident ( id. at 680, 800 N.Y.S.2d 26 ). Thus, in determining whether a driver had full notice of danger that a traffic control would have provided, New York courts have considered a driver's familiarity with the road and route as a relevant factor.

Here, in failing to reinstall a previously established traffic control, the City breached its nondelegable duty to maintain the roadway in safe condition (see Friedman at 283, 502 N.Y.S.2d 669, 493 N.E.2d 893 ; Deringer, 260 A.D.2d at 306, 689 N.Y.S.2d 68 [1999] ). Plaintiff testified that he had never been to the intersection before the accident. Plaintiff also testified that, when he started to turn across the Park Avenue median at the intersection, he was "confused" as to whether or not the lights facing eastward traffic on E. 65th Street controlled plaintiff's movements. The dissent argues that the familiarity of the intersection of the Applebee driver has no import in the instant matter. According to the dissent, plaintiff had all the notice of danger that a "stop here on red" sign and stop bar would have afforded him, because plaintiff had stopped before entering the intersection but continued to proceed knowing that he needed to yield to oncoming traffic. The dissent cites the Applebee Court's reasoning that "the physical conditions and the operator's own awareness of them, and of what was required of [him] in making a left-hand turn, prescribed the same course of action as a stop sign would have" ( Applebee, 308 N.Y. at 508, 127 N.E.2d 289 ). However, the presence of a "stop here on red" sign would have likely prescribed a different course of action. A "stop here on red" goes beyond what a stop sign commands and prescribes that a driver remain fully stopped until the controlling traffic light turns green. It also indicates to a driver that oncoming traffic must stop before the intersection, and that the

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driver is...