Heins v. Vanbourgondien, 2017–01885

• Decision Date: 26 February 2020
• Docket Number: 2017–01885,Index No. 3967/11
• Parties: Abigail L. HEINS, etc., et al., Plaintiffs-Respondents-Appellants, v. Kimberly VANBOURGONDIEN, et al., Defendants-Respondents-Appellants, Anthony Cocheo, etc., et al., Defendants-Respondents, County of Suffolk, Appellant-Respondent, et al, Defendants.
• Court: New York Supreme Court — Appellate Division

180 A.D.3d 1019

119 N.Y.S.3d 158

Abigail L. HEINS, etc., et al., Plaintiffs-Respondents-Appellants,

v. Kimberly VANBOURGONDIEN, et al., Defendants-Respondents-Appellants,Anthony Cocheo, etc., et al., Defendants-Respondents,County of Suffolk, Appellant-Respondent, et al, Defendants.

2017–01885

Index No. 3967/11

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

Argued—November 18, 2019

February 26, 2020

Dennis M. Brown, San Jose, County Attorney, Hauppauge, N.Y. (Christopher A. Jeffreys and Susan A. Flynn of counsel), for appellant-respondent.

Sullivan Papain Block McGrath & Cannavo P.C., New York, N.Y. (Stephen C. Glasser and Gabriel Arce–Yee of counsel), for plaintiffs-respondents-appellants.

Mazzara & Small, P.C., Bohemia, N.Y. (Timothy F. Mazzara Hauppauge, of counsel), for defendants-respondents-appellants.

Ryan, Brennan & Donnelly, LLP, Floral Park, N.Y. (John Brennan and John B. Telesca of counsel), for defendant-respondent Anthony Cocheo.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley Uniondale, of counsel), for defendant-respondent Farrukh Baig.

MARK C. DILLON, J.P., SHERI S. ROMAN, HECTOR D. LASALLE, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant County of Suffolk appeals, the defendants Kimberly Vanbourgondien and Patricia A. Vanbourgondien cross-appeal, and the plaintiffs separately appeal from an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated January 23, 2017. The order, insofar as appealed from by the County of Suffolk, denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it and granted the plaintiffs' cross motion to compel the deposition of William Colavito. The order, insofar as cross-appealed from by the defendants Kimberly Vanbourgondien and Patricia A. Vanbourgondien, denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The order, insofar as appealed from by the plaintiffs, granted those branches of the separate motions of the defendants Anthony Cocheo and Farrukh Baig which were for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is modified, on the law and the facts, (1) by deleting the provision thereof granting the plaintiffs' cross motion to compel the deposition of William Colavito, and substituting therefor a provision denying the plaintiffs' cross motion, and (2) by deleting the provision thereof denying that branch of the motion of the defendants Kimberly Vanbourgondien and Patricia A. Vanbourgondien which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against the defendant Patricia A. Vanbourgondien, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the defendants Anthony Cocheo and Farrukh Baig payable by the plaintiffs.

In the early hours of August 7, 2010, the plaintiff Abigail L. Heins (hereinafter Abigail), then 17 years old, was driving a vehicle owned by the defendant Patricia A. Vanbourgondien (hereinafter Patricia) and entrusted to Patricia's daughter, the defendant Kimberly Vanbourgondien (hereinafter Kimberly), then 19 years old. Earlier in the evening, Kimberly and Abigail purchased alcohol from both the defendant Anthony Cocheo, doing business as 7–Eleven Store No. 24020D (hereinafter Cocheo 7–Eleven), and the defendant Farrukh Baig, doing business as 7–Eleven Store No. 20093D (hereinafter Baig 7–Eleven; hereinafter together the 7–Eleven defendants). Abigail, Kimberly, and two rear seat passengers had all consumed alcohol. As Abigail drove west on County Road 48 in Suffolk County, a disagreement arose regarding the song that was on the radio. Although it is not clear precisely what occurred, the record establishes that the ensuing contretemps distracted Abigail, causing her to swerve into the median. The vehicle entered the median, which sloped downward toward its center, hit the opposite slope, rolled at least once, and came to rest in the median.

Abigail, and her father, the plaintiff Erick Heins, suing derivatively, commenced this action, inter alia, to recover damages for personal injuries against Kimberly and Patricia (hereinafter together the Vanbourgondiens), the 7–Eleven defendants, the County of Suffolk, and others. The Vanbourgondiens, Baig 7–Eleven, Cocheo 7–Eleven, and the County each moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them. The plaintiffs cross-moved to compel an additional deposition of the County by William Colavito. The Supreme Court denied the Vanbourgondiens' motion, granted the 7–Eleven defendants' motions, and denied the County's motion. The court also granted the plaintiffs' cross motion to compel Colavito's deposition. The County appeals from so much of the order as denied its motion for summary judgement dismissing the complaint and all cross claims insofar as asserted against it and granted the plaintiffs' cross motion to compel. The Vanbourgondiens cross-appeal from so much of the order as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The plaintiffs separately appeal from so much of the order as granted those branches of the motions of the 7–Eleven defendants which were for summary judgment dismissing the complaint insofar as asserted against each of them. We modify.

A municipality has a duty to keep its roadways in a reasonably safe condition (see Tyberg v. City of New York , 173 A.D.3d 1239, 1240, 104 N.Y.S.3d 703 ; Rubio v. State of New York , 168 A.D.3d 892, 893, 91 N.Y.S.3d 461 ; Iovine v. State of New York , 165 A.D.3d 766, 767–768, 85 N.Y.S.3d 520 ). " ‘While this duty is nondelegable, it is measured by the courts with consideration given to the proper limits on intrusion into the municipality's planning and decision-making functions. Thus, in the field of traffic design engineering, the [governmental body] is accorded a qualified immunity from liability arising out of a highway planning decision’ " ( Tyberg v. City of New York , 173 A.D.3d at 1240, 104 N.Y.S.3d 703, quoting Friedman v. State of New York , 67 N.Y.2d 271, 283, 502 N.Y.S.2d 669, 493 N.E.2d 893 ; see Iovine v. State of New York , 165 A.D.3d at 768, 85 N.Y.S.3d 520 ; Warren v. Evans , 144 A.D.3d 901, 901–902, 42 N.Y.S.3d 37 ; Ramirez v. State of New York , 143 A.D.3d 880, 881, 39 N.Y.S.3d 220 ). Accordingly, a governmental body may not be held liable for a highway safety planning decision unless its study of the traffic condition was plainly inadequate or its traffic plan lacks a reasonable basis (see Turturro v. City of New York , 28 N.Y.3d 469, 480, 45 N.Y.S.3d 874, 68 N.E.3d 693 ; Tyberg v. City of New York , 173 A.D.3d at 1240, 104 N.Y.S.3d 703 ; Warren v. Evans , 144 A.D.3d at 902, 42 N.Y.S.3d 37 ).

"To establish its entitlement to qualified immunity, the governmental body must demonstrate ‘that the relevant discretionary determination by the governmental body was the result of a deliberate decision-making process’ " ( Ramirez v. State of New York , 143 A.D.3d at 881, 39 N.Y.S.3d 220, quoting Iacone v. Passanisi , 133 A.D.3d 717, 718, 19 N.Y.S.3d 583 ; see Iovine v. State of New York , 165 A.D.3d at 768, 85 N.Y.S.3d 520 ). A municipality will enjoy qualified immunity "only where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury" ( Turturro v. City of New York , 28 N.Y.3d at 480, 45 N.Y.S.3d 874, 68 N.E.3d 693 [internal quotation marks omitted]; see Tyberg v. City of New York , 173 A.D.3d at 1240–1241, 104 N.Y.S.3d 703 ; Iovine v. State of New York , 165 A.D.3d at 768, 85 N.Y.S.3d 520 ; Warren v. Evans , 144 A.D.3d at 902, 42 N.Y.S.3d 37 ; Ramirez v. State of New York , 143 A.D.3d at 881, 39 N.Y.S.3d 220 ).

Here, the County failed to proffer evidence establishing that any County body had engaged in a " ‘deliberate decision-making process’ " regarding the design of County Road 48 ( Ramirez v. State of New York , 143 A.D.3d at 881, 39 N.Y.S.3d 220, quoting Iacone v. Passanisi , 133 A.D.3d at 718, 19 N.Y.S.3d 583 ) or that such body had "passed on the very same question of risk as would ordinarily go to the jury" ( Turturro v. City of New York , 28 N.Y.3d at 480, 45 N.Y.S.3d 874, 68 N.E.3d 693 [internal quotation marks omitted] ). Since the County failed to demonstrate that the design of County Road 48 and any subsequent alterations to it were the result of deliberate governmental decision-making which considered the risks relevant to this action, we agree with the Supreme Court's determination that the County was not entitled to summary judgment based upon a defense of qualified immunity (see Bednoski v. County of Suffolk , 145 A.D.3d 943, 944, 44 N.Y.S.3d 485 ).

" ‘The liability of a municipality begins and ends with the fulfillment of its duty to construct and maintain its highways in a reasonably safe condition. No liability will attach unless the alleged negligence of the municipality in maintaining its roads is a proximate cause of the accident’ " ( Crawford v. Village of Millbrook , 94 A.D.3d 1036, 1038, 943 N.Y.S.2d 180, quoting Levi v. Kratovac , 35 A.D.3d 548, 549, 827 N.Y.S.2d 196 ). "[A]s long as a highway is reasonably safe for those who obey the rules of the road, the duty of the municipality is satisfied" ( Levi v. Kratovac , 35 A.D.3d at 549, 827 N.Y.S.2d 196 ). Nevertheless, a municipality's duty to maintain its roadways in a reasonably safe condition "extends to furnishing safe guardrails" ( Bednoski v. County of Suffolk , 145 A.D.3d at 944, 44 N.Y.S.3d 485 ). A " ‘municipality's duty to maintain its highways extends...