Kuhland v. City of N.Y.

• Decision Date: 15 February 2011
• Parties: Karin KUHLAND, etc., respondent, v. CITY OF NEW YORK, appellant, et al., defendant.
• Court: New York Supreme Court — Appellate Division

916 N.Y.S.2d 637
81 A.D.3d 786

Karin KUHLAND, etc., respondent,
v.
CITY OF NEW YORK, appellant, et al., defendant.

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

Feb. 15, 2011.

916 N.Y.S.2d 637

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo

916 N.Y.S.2d 638

and Tahirih M. Sadrieh of counsel), for appellant.

Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Brian J. Shoot and Robert G. Sullivan of counsel), for respondent.

MARK C. DILLON, J.P., JOSEPH COVELLO, ANITA R. FLORIO, and L. PRISCILLA HALL, JJ.

81 A.D.3d 786

In an action to recover damages for personal injuries, the defendant City of New York appeals from an interlocutory judgment of the Supreme Court, Queens County (Orlikoff-Flug, J.), entered August 28, 2009, which, upon the denial of its motion pursuant to CPLR 4401 for judgment as a matter of law made at the close of the plaintiff's case, upon the denial of its renewed

81 A.D.3d 787

motion pursuant to CPLR 4401 for judgment as a matter of law made at the close of evidence, upon a jury verdict on the issue of liability finding the plaintiff 20% at fault in the happening of the accident, the defendant Roberto M. Lewis 30% at fault, and it 50% at fault, and upon the denial of its motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability as contrary to the weight of the evidence or, in the alternative, as unsupported by legally sufficient evidence and for judgment as a matter of law, apportioned fault among the parties accordingly.

ORDERED that the interlocutory judgment is affirmed, with costs.

"It has long been held that a municipality owe[s] to the public the absolute duty of keeping its streets in a reasonably safe condition. 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" ( 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 and citations omitted] ). Thus, in the field of traffic design engineering, a municipality is accorded a qualified immunity from liability arising out of a highway planning decision ( see Turturro v. City of New York, 77 A.D.3d 732, 735, 908 N.Y.S.2d 738).

However, the doctrine of qualified immunity will not apply where the municipality has not conducted a study which "entertained and passed on the very same question of risk" ( Weiss v. Fote, ...