Rodriguez v. Palacio

• Decision Date: 03 November 2021
• Docket Number: Index No. 28861/11,2018-12368,s. 2018-12124
• Citation: 2021 NY Slip Op 06000
• Parties: Roberto Rodriguez, etc., appellant, v. Alexander Palacio, defendant, City of New York, et al., respondents.
• Court: New York Supreme Court

2021 NY Slip Op 06000

Roberto Rodriguez, etc., appellant, v. Alexander Palacio, defendant, City of New York, et al., Respondents.

Nos. 2018-12124, 2018-12368

Index No. 28861/11

Supreme Court of New York, Second Department

November 3, 2021

Argued - September 20, 2021

D67396 Q/afa

Queller, Fisher, Washor, Fuchs & Kool, New York, NY (Matthew J. Maiorana of counsel), for appellant.

Harris Beach PLLC, New York, NY (Andrew J. Orenstein, Svetlana K Ivy, and Bradley M. Wanner of counsel), for respondents City of New York, New York City Department of Transportation, and New York City Economic Development Corporation.

Kennedys CMK (Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY [Timothy R. Capowski and John F. Watkins], of counsel), for respondent LiRo Engineers, Inc.

Pillinger Miller Tarallo, LLP, Elmsford, NY (Patrice M. Coleman of counsel), for respondent Triumph Construction Corp.

CHERYL E. CHAMBERS, J.P. BETSY BARROS PAUL WOOTEN DEBORAH A DOWLING, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, etc., the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Bruce M. Balter, J.), entered July 24, 2018, and (2) an order of the same court entered August 27, 2018. The order entered July 24, 2018, granted the motion of the defendants City of New York, New York City Department of Transportation, and New York City Economic Development Corporation, and the separate motion of the defendant Triumph Construction Corp., for summary judgment dismissing the complaint insofar as asserted against each of them. The order entered August 27, 2018, granted the motion of the defendant LiRo Engineers, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the orders are affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

These related appeals arise out of a fatal single-vehicle accident that occurred on the exit ramp of the eastbound Queensboro Bridge South Outer Roadway at approximately 4:00 a.m. on April 6, 2011. According to the police accident report, the driver of the vehicle, the defendant Alexander Palacio, struck the curb while traveling on the South Outer Roadway exit ramp (hereinafter SOR exit ramp) "at an apparent high rate of speed," causing him to lose control of the vehicle, strike a guard rail, and crash into several storefronts on nearby Queens Plaza South. The plaintiff's decedent, Beatriz Rojas Rodriguez (hereinafter the decedent), was asleep in the passenger seat of Palacio's vehicle and died as a result of the injuries she sustained in the accident. Palacio admitted at his deposition to having consumed several alcoholic beverages in the hours preceding the accident, including wine, beer, and tequila.

The plaintiff, Roberto Rodriguez, individually and as the administrator of the decedent's estate, thereafter commenced this action against Palacio, the City of New York, New York City Department of Transportation, New York City Economic Development Corporation, LiRo Engineers, Inc. (hereinafter LiRo), and Triumph Construction Corp. (hereinafter Triumph), inter alia, to recover damages for wrongful death. LiRo and Triumph are both contractors for the New York City Economic Development Corporation on a project located adjacent to the SOR exit ramp. The pleadings alleged, among other things, that the City, New York City Department of Transportation, and New York City Economic Development Corporation (hereinafter collectively the City defendants) were negligent in the planning and design of the "geometry" of the SOR exit ramp, and that the City defendants, Triumph, and LiRo were negligent in placing a concrete median divider, known as a "Jersey barrier," on the SOR exit ramp which abruptly redirected Palacio's direction of travel. Following discovery, the City defendants, Triumph, and LiRo separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. In opposition to the motions, the plaintiff submitted the affidavit of an engineer who opined, among other things, that the accident was caused by orange traffic barrels in the roadway which narrowed the lane of travel. In an order entered July 24, 2018, the Supreme Court granted the motions of the City defendants and Triumph for summary judgment dismissing the complaint insofar as asserted against each of them. In an order entered August 27, 2018, the court granted the motion of LiRo for summary judgment dismissing the complaint insofar as asserted against it. The plaintiff appeals from both orders. We affirm.

The Supreme Court properly granted the motions of Triumph and LiRo for summary judgment dismissing the complaint insofar as asserted against each of them. "[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (Espinal v Melville Snow Contrs., 98 N.Y.2d 136, 138). Insofar as is relevant to this appeal, an exception to this general rules applies "where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launches a force or instrument of harm" (id. at 140 [internal quotation marks omitted]) or "creates or exacerbates a hazardous condition" (id. at 142 [internal quotation marks omitted]; see Cortes v City of New York, 188 A.D.3d 643; Hagan v City of New York, 166 A.D.3d 590, 592; Castillo v Port Auth. of N.Y. & N.J., 159 A.D.3d 792, 793). Here, the submissions in support of their respective motions established, prima facie, that neither Triumph nor LiRo launched an instrument of harm or created or exacerbated a dangerous condition alleged to have caused the accident (see Castillo v Port Auth. of N.Y. & N.J., 159 A.D.3d at 793). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). Contrary to the plaintiff's contention, the court did not overlook or misapprehend evidence concerning the alleged placement of orange plastic barrels on the SOR exit ramp prior to the accident.

The Supreme Court properly granted that branch of the City defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the City of New York and the New York City Department of Transportation on the ground of qualified immunity. "'[A] municipality owe[s] to the public the absolute duty of keeping its streets in a reasonably safe condition'" (Mansour-Mohamed v State of New York, 189 A.D.3d 1016, 1016, quoting Friedman v State of New York, 67 N.Y.2d 271, 283). "'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 1239, 1240, quoting Friedman v State of New York, 67 N.Y.2d at 283). "Under the doctrine of qualified immunity, a governmental body may...