Deringer v. Rossi

• Decision Date: 29 April 1999
• Citation: 260 A.D.2d 305,689 N.Y.S.2d 68
• Parties: DOROTHY DERINGER et al., Appellants,<BR>v.<BR>LINDA ROSSI, Defendant, and CITY OF NEW YORK, Respondent.<BR>LINDA ROSSI, Appellant,<BR>v.<BR>CITY OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

260 A.D.2d 305

689 N.Y.S.2d 68

DOROTHY DERINGER et al., Appellants,

v.LINDA ROSSI, Defendant, and CITY OF NEW YORK, Respondent.

LINDA ROSSI, Appellant,

v.CITY OF NEW YORK, Respondent.

Decided April 29, 1999.

Concur — Ellerin, P. J., Williams, Wallach and Andrias, JJ.

Plaintiffs were injured in October 1987 when the right front wheel of their car hit a low-rising traffic island at the intersection of West and West Houston Streets in Manhattan, and spun out of control. Trapezoidal in shape, its point facing the oncoming flow of southbound traffic on West Street, the concrete device, with its graduated curb, is described in the Uniform Traffic Control regulations (17 NYCRR 262.20 [f] [1]) as a "channelizing island," whose primary function is "to control and guide a motorist into the proper lane" and "to promote an orderly flow of traffic" headed in the same direction. Plaintiffs' expert traffic engineer attested to the fact that the 1982 plans called for a "No Left Turn" sign and a pedestrian signal device to be posted on this traffic island. There are indications that at one time at least one traffic sign did rise from the center of the island; the post hole has since been cemented over. A "No Turns" sign now rises from a pedestrian refuge island to the left of the lane in which the accident occurred.

In granting summary judgment, the Nisi Prius Judge was persuaded that the City had no notice of any hazardous condition vis-Ã -vis the traffic island. There is a principle of qualified immunity that prevents a trier of facts from second-guessing the planning decisions of governmental bodies regarding such operations as traffic control and regulation (Weiss v Fote, 7 NY2d 579). This does not, however, absolve a municipality of its obligation to review its traffic plans periodically, in the interest of public safety, for the purpose of becoming aware of and remedying dangerous conditions (see, Friedman v State of New York, 67 NY2d 271). Such presumptive immunity can be overcome by notice of a history of accidents at the site (see, e.g., Gregorio v City of New York, 246 AD2d 275, lv granted 255 AD2d 1018). The City successfully focused its argument upon the absence of any such history.

However, the court erred when it overlooked evidence of actual notice in the record—a decision by the City's traffic planners, well before the date of the accident, to remove this island. Once a municipality determines to remedy a potentially dangerous traffic condition, any delay in doing so can expose the municipality to liability, notwithstanding the qualified governmental immunity (Pizzi v City of New York, 156 AD2d 438). The map of the area, prepared for the Bureau of Traffic Operations in August 1982, bears the hand-printed notation (referring to the traffic island in question), "CONC. MALL TO...