Rosado v. City of New Rochelle

• Decision Date: 11 August 2021
• Docket Number: 2018-08014,Index 64178/15
• Citation: 2021 NY Slip Op 04675
• Parties: Paula C. Rosado, et al., appellants, v. City of New Rochelle, respondent.
• Court: New York Supreme Court

2021 NY Slip Op 04675

Paula C. Rosado, et al., appellants, v. City of New Rochelle, respondent.

No. 2018-08014, Index No. 64178/15

Supreme Court of New York, Second Department

August 11, 2021

DeGraff, Foy & Kunz, LLP, Albany, NY (David F. Kunz and George J. Szary of counsel), for appellants.

O'Connor, McGuinness, Conte, Doyle, Oleson, Watson &amp Loftus, LLP, White Plains, NY (Heather Haralambides of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated June 13, 2018. The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

On July 1, 2014, Paula C. Rosado (hereinafter the injured plaintiff) was walking in a crosswalk, with the pedestrian light in her favor, at the intersection of North Avenue and Fifth Avenue in the City of New Rochelle, when she was struck by a vehicle operated by nonparty Gianna Parente. The accident occurred while Parente was attempting to make a left turn onto Fifth Avenue. The intersection was controlled by a traffic light and there was a designated left turn lane, from which Parente proceeded, but the traffic light did not have a separate indicator for traffic turning left. The injured plaintiff, and her husband suing derivatively, commenced this action alleging that the defendant City of New Rochelle was negligent in failing to install appropriate traffic control devices at the subject intersection. The City moved for summary judgment dismissing the complaint on the ground, inter alia, that it was entitled to qualified immunity arising out of a highway planning decision. The Supreme Court granted the motion, and the plaintiffs appeal.

A governmental entity has a duty to the public to keep its streets in a reasonably safe condition (see Friedman v State of New York, 67 N.Y.2d 271, 283; Weiss v Fote, 7 N.Y.2d 579, 584; Iacone v Passanisi 133 A.D.3d 717, 718). "While this duty is nondelegable, it is measured by the courts with consideration given to the proper limits on intrusion into the [government'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" (Friedman v State of New York, 67 N.Y.2d at 283; see Poveromo v Town of Cortlandt, 127 A.D.3d 835, 837; Schuster v McDonald, 263 A.D.2d 473, 473-474; Ganios v State of New York, 181 A.D.2d 859, 860). Under the doctrine of qualified immunity, a governmental entity may not be held liable for a highway safety planning decision unless its study of a traffic condition is plainly inadequate, or there is no reasonable basis for its traffic plan (see Friedman v State of New York, 67 N.Y.2d at 283-284; Alexander v Eldred, 63 N.Y.2d 460, 466; Weiss v Fote, 7 N.Y.2d at 589; Schuster v McDonald, 263 A.D.2d at 474). Immunity will apply 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" (Weiss v Fote, 7 N.Y.2d at 588; see Ernest v Red Cr. Cent. School Dist., 93 N.Y.2d 664, 673; Kuhland v City of New York, 81 A.D.3d 786, 787; Selca v City of...