Gagliardi v. State

• Decision Date: 15 March 2017
• Citation: Gagliardi v. State, 148 A.D.3d 868, 49 N.Y.S.3d 504 (N.Y. App. Div. 2017)
• Parties: Nicholas M. GAGLIARDI, Jr., etc., appellant, v. STATE of New York, respondent.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 868

49 N.Y.S.3d 504

Nicholas M. GAGLIARDI, Jr., etc., appellant,

v.STATE of New York, respondent.

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

March 15, 2017.

Covey, Roberts & Carmody–Roberts, LLC, Katonah, NY (Michael Fuller Sirignano, George Hunter Roberts, and Loriann M. Low of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York, NY (Claude S. Platton and Bethany A. Davis Noll of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, HECTOR D. LaSALLE, and BETSY BARROS, JJ.

In a claim to recover damages for wrongful death, the claimant appeals from (1) a judgment of the Court of Claims (Scuccimarra, J.), dated November 3, 2014, which, upon a decision of the same court dated September 23, 2014, made after a trial, is in favor of the defendant and against him dismissing the claim, and (2) an order of the same court dated March 30, 2015, which denied his motion pursuant to CPLR 4404(b) to set aside the decision and the judgment.

ORDERED that the judgment and the order are affirmed, with one bill of costs.

The claimant commenced this claim against the State of New York to recover damages for the wrongful death of his mother (hereinafter the decedent). On December 2, 2011, the decedent allegedly was traveling southbound on State Route 22 in the Town of Pawling, when her vehicle suddenly left the roadway, struck a guardrail, became airborne, and struck a large highway sign. The claimant alleged, inter alia, that the State was negligent in its design and placement of the guardrail. Following a trial, the Court of Claims dismissed the claim. Thereafter, the claimant moved pursuant to CPLR 4404(b) to set aside the decision and the judgment of the court based on newly discovered evidence, and the court denied his motion.

"[A] municipality owes to the public the absolute duty of keeping its streets in a reasonably safe condition" (Friedman v. State of New York, 67 N.Y.2d 271, 283, 502 N.Y.S.2d 669, 493 N.E.2d 893 [internal quotation marks omitted] ). However, "in the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision" (id. at 283, 502 N.Y.S.2d 669, 493 N.E.2d 893 ). Under the qualified immunity doctrine, liability may arise where there is proof that the State's traffic design plan "evolved without adequate study or lacked a reasonable basis" (Weiss v. Fote, 7 N.Y.2d 579, 589, 200 N.Y.S.2d 409, 167 N.E.2d 63 ). Moreover, "something more than a mere choice between conflicting opinions of experts is required before the State ... may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public" (id. at 588, 200 N.Y.S.2d 409, 167 N.E.2d 63 ; see McCabe v. Town of Brookhaven, 289 A.D.2d 541, 542, 735 N.Y.S.2d 608 ).

Here, the Court of Claims properly dismissed the claim based upon the evidence the State submitted at trial, which showed that the design and placement of the guardrail were the result of a deliberate decision-making process after an adequate study and had a reasonable basis (see Ramirez v. State of New York, 143 A.D.3d 880, 882, 39 N.Y.S.3d 220 ; Fan Guan v. State of New York, 55 A.D.3d 782, 784, 866 N.Y.S.2d 697 ; Galvin v. State of New York, 245 A.D.2d 418, 419, 666 N.Y.S.2d 673 ). Moreover, contrary to the claimant's contention, he failed to demonstrate that the State had prior notice that the subject guardrail constituted a dangerous condition at the accident site (see generally Fan Guan v. State of New York, 55 A.D.3d at 784, 866 N.Y.S.2d 697 ; Galvin v. State of New York, 245 A.D.2d at 419, 666 N.Y.S.2d 673 ).

Pursuant to CPLR 4404(b), "after a trial not triable as of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision and issue a new decision based on, inter alia, newly-discovered evidence" (Da Silva v. Savo,

97 A.D.3d 525, 526, 948 N.Y.S.2d 333 ; see Matter of Torregroza v. Gomez, 85 A.D.3d 932, 933, 925 N.Y.S.2d 159 ). However, CPLR 4404(b) is not a "grant to the party bringing the motion to supplement the evidence adduced at trial with additional evidence, unless there is a claim that such evidence is newly discovered or...