Pizzi v. City of New York

• Decision Date: 11 December 1989
• Citation: 548 N.Y.S.2d 554,156 A.D.2d 438
• Parties: Peter PIZZI, etc., Respondent, v. The CITY OF NEW YORK, et al., Defendants, Welsbach Electric Corp., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 554

548 N.Y.S.2d 554

156 A.D.2d 438

Peter PIZZI, etc., Respondent, v. The CITY OF NEW YORK, et al., Defendants, Welsbach Electric Corp., et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

Dec. 11, 1989.

Joseph W. Conklin, New York City (Kevin G. Horbatiuk, of counsel), for appellant Welsbach Elec. Corp.

Sheft & Sweeney, New York City (Patrick Colligan, of counsel), for appellant L.K. Comstock Co., Inc.

Lance P. Armstrong, Staten Island, for respondent.

Before THOMPSON, J.P., and EIBER, SULLIVAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for wrongful death, etc., the defendants L.K. Comstock Company, Inc., and Welsbach Electric Corp. separately appeal from so much of an order of the Supreme Court, Richmond County (Cusick, J.), dated March 30, 1988, as denied their motions for summary judgment dismissing the complaint and all cross-claims as against them.

ORDERED that the order is affirmed, with costs.

As a general rule, the decision as to whether to install a traffic control device is a discretionary governmental function which will not expose a municipality to liability (see, Cimino v. City of New York, 54 A.D.2d 843, 388 N.Y.S.2d 276, affd. 43 N.Y.2d 966, 404 N.Y.S.2d 595, 375 N.E.2d 775; see, also, Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63). However, once the municipality has determined to have a traffic control device installed to remedy a dangerous condition, an unjustified delay in its installation may constitute a breach of the municipality's duty to keep its roadways in a reasonably safe condition (see, Friedman v. State of New York, 67 N.Y.2d 271, 286, 502 N.Y.S.2d 669, 493 N.E.2d 893; Marren v. State of New York, 142 A.D.2d 717, 720, 531 N.Y.S.2d 298). In the instant action, there is no dispute that in February 1984 the City of New York ordered the installation of a traffic control signal at the intersection where the accident at issue occurred but that the installation of the signal did not occur until October 1984. The record contains sufficient proof to create a question of fact as to whether the defendants Welsbach Electric Corp. and L.K. Comstock Company, Inc., with whom the City of New York had contracted to install the traffic control signal at the subject intersection, had unreasonably delayed the installation of the traffic control device (see, Friedman v. State of New York, supra ). We, therefore, conclude that the Supreme Court properly denied...