Longo by Longo v. Tafaro

• Decision Date: 16 February 1988
• Parties: Denise LONGO, an Infant, BY Her Parent and Natural Guardian, Joseph LONGO, et al., Appellants, v. Vincent TAFARO, Defendant, The City of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 754

524 N.Y.S.2d 754

137 A.D.2d 661

Denise LONGO, an Infant, BY Her Parent and Natural Guardian Joseph LONGO, et al., Appellants, v. Vincent TAFARO, Defendant The City of New York, Respondent.

Supreme Court, Appellate Division Second Department.

Feb. 16, 1988.

John G. Hall, Staten Island, for appellants.

Peter L. Zimroth, Corp. Counsel, New York City (Francis F. Caputo and Trudi Mara Schleifer, of counsel), for respondent.

Before LAWRENCE, J.P., and KUNZEMAN, KOOPER and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) so much of a judgment of the Supreme Court, Richmond County (Sangiorgio, J.), entered May 12, 1986, as, upon granting a motion by the City of New York at the close of the plaintiffs' case to dismiss the plaintiffs' complaint insofar as it is asserted against it, is in favor of the City of New York and against them, and (2) an order of the same court, dated September 9, 1986, which denied the plaintiffs' motion for a new trial.

ORDERED that the judgment is affirmed insofar as appealed from, and the order is affirmed, without costs or disbursements.

The instant action arises out of an accident which occurred on the evening of July 30, 1979, on Hylan Boulevard near its intersection with Stobe Avenue in Staten Island. The infant plaintiffs, Denise Longo and Donna Amato, had been in the process of crossing Hylan Boulevard when they were run down by the defendant Vincent Tafaro as they paused in the painted median that separated the east and westbound traffic. The median was 10 feet wide and consisted of an outer perimeter of double yellow lines, which surrounded an interior of diagonal solid white lines. The defendant Tafaro was observed driving erratically, speeding and straddling the painted median just prior to the incident. Tafaro did not stop at the scene and was pursued by a witness to the accident to the Verrazano Narrows Bridge, where he was arrested.

The plaintiffs' primary allegation against the defendant City of New York was that the city negligently failed to install a raised concrete median at the section of Hylan Boulevard where the accident occurred. The plaintiffs claimed that had the median been in place, the accident could have been avoided.

At the close of the plaintiffs' case, the city's motion to dismiss all claims against it for failure to prove a prima facie case was granted. Thereafter, the plaintiffs' motion for a new trial of their claims against the defendant City of New York was denied and this appeal ensued.

As this court stated in Santiago v. Steinway Trucking, 97 A.D.2d 753, 753-754, 468 N.Y.S.2d 175:

"In reviewing the dismissal of plaintiffs' complaint at the close of their case, this court is required (as was the trial court) to view the evidence adduced in the light most favorable to plaintiffs, and all questions as to a particular witness' credibility must be resolved in plaintiffs' favor ( Calvaruso v. Our Lady of Peace R.C. Church, 36 AD2d 755 see, Lipsius v White, 91 AD2d 271, 276 ). Plaintiffs are entitled to the benefit of all inferences which can reasonably be drawn from the evidence ( Becker v Pryschlak, 94 AD2d 753 Carter v Castle Elec. Contr. Co., 26 AD2d 83 ). The applicable criterion is not the weighing of the proof, but rather, the trial court must determine whether upon any rational basis, the triers of fact could find in plaintiffs' favor (Calvaruso v Our Lady of Peace R.C. Church, supra; 4 Weinstein-Korn-Miller, NYCivPrac par 4401.05; Siegel, NYPrac, § 402, p 529)".

In the instant case, the triers of fact could not have found in the plaintiffs' favor against the city upon any rational basis.

As the Court of Appeals stated in Friedman v. State of New York, 67 N.Y.2d 271, 283-284, 502 N.Y.S.2d 669, 493 N.E.2d 893:

"It has been held that a municipality ' "oweto the public the absolute duty of keeping its streets in a reasonably safe condition" ' ( Weiss v Fote, 7 NY2d 579, 584 supra, quoting Annino v City of Utica, 276 NY 192, 196 see also, Lopes v Rostad, 45 NY2d 617, 623 ). 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 State is accorded a qualified immunity from liability arising out of a highway planning decision ( Alexander v Eldred, 63 NY2d 460, 465-466 Weiss v Fote, 7 NY2d 579, 585-586 supra ). In the seminal Weiss case, we recognized that 'accept a jury's verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts' (7 NY2d, at pp 585-586 supra ). The Weiss court examined a municipality's decision to design a traffic light with a four-second interval between changing signals, and concluded that there was no indication that 'due care was not exercised in the preparation of the design or that no reasonable official could have adopted it' ( id., at p 586 ). We went on to note that 'something more than a mere choice...