Opinion
12-28-2016
Corinne BEDNOSKI, et al., respondents, v. COUNTY OF SUFFOLK, appellant.
Dennis M. Brown, County Attorney, Hauppauge, NY (Christopher A. Jeffrey of counsel), for appellant. Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn ], of counsel), for respondents.
Dennis M. Brown, County Attorney, Hauppauge, NY (Christopher A. Jeffrey of counsel), for appellant.
Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn ], of counsel), for respondents.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and VALERIE BRATHWAITE NELSON, JJ.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated December 2, 2014, which denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff Corrine Bednoski (hereinafter the plaintiff) allegedly sustained personal injuries when, while traveling on County Road 48 in Suffolk County, her vehicle suddenly veered off of the roadway and struck a concrete drainage structure located in the center median. The plaintiff, and her husband suing derivatively, thereafter commenced this action against the County of Suffolk. The County moved for summary judgment dismissing the complaint, arguing that it was entitled to qualified governmental immunity for its highway planning decisions, that it did not owe a duty of care to the plaintiff, and that the plaintiff's actions were the sole proximate cause of her accident. The Supreme Court denied the County's motion. The County appeals.
Contrary to the County's contention, it failed to establish its prima facie entitlement to judgment as a matter of law on the basis of qualified governmental immunity. A municipal defendant is entitled to qualified immunity "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 579, 588, 200 N.Y.S.2d 409, 167 N.E.2d 63 ; see Affleck v. Buckley, 96 N.Y.2d 553, 556, 732 N.Y.S.2d 625, 758 N.E.2d 651 ; Ernest v. Red Cr. Cent. School Dist., 93 N.Y.2d 664, 673, 695 N.Y.S.2d 531, 717 N.E.2d 690 ; Turturro v. City of New York, 127 A.D.3d 732, 735–736, 5 N.Y.S.3d 306, lv. granted 26 N.Y.3d 908, 2015 WL 6143534 ). Here, the evidence presented by the County failed to establish that it undertook a study which entertained and passed on the very same question of risk that is at issue in this case (see Weiss v. Fote, 7 N.Y.2d at 588, 200 N.Y.S.2d 409, 167 N.E.2d 63 ; Moskovitz v. City of New York, 130 A.D.3d 991, 991–992, 14 N.Y.S.3d 425 ; Poveromo v. Town of Cortlandt, 127 A.D.3d 835, 837, 6 N.Y.S.3d 617 ; Mare v. City of New York, 112 A.D.3d 793, 794, 977 N.Y.S.2d 342 ).
A municipality has a duty to maintain its roads and highways in a reasonably safe condition (see Friedman v. State of New York, 67 N.Y.2d 271, 283, 502 N.Y.S.2d 669, 493 N.E.2d 893 ; Finn v. Town of Southampton, 289 A.D.2d 285, 734 N.Y.S.2d 215 ). This duty extends to furnishing safe guardrails (see Gomez v. New York State Thruway Authority, 73 N.Y.2d 724, 725, 535 N.Y.S.2d 587, 532 N.E.2d 93 ; Carrillo v. County of Rockland, 11 A.D.3d 575, 575–576, 782 N.Y.S.2d 668 ; Ames v.
City of New York, 177 A.D.2d 528, 531, 575 N.Y.S.2d 917 ). Here, the County failed to establish, prima facie, that it did not have a duty to place guardrails near the concrete headwall involved in the plaintiff's accident.
The County also failed to establish, prima facie, that its alleged negligence was not a proximate cause of the plaintiff's injuries. "There can be more than one proximate cause of an accident" and "where varying inferences as to causation are possible, resolution of the issue of proximate cause is a question for the jury" (Poveromo v. Town of Cortlandt, 127 A.D.3d at 838, 6 N.Y.S.3d 617 [internal quotation marks omitted]; see Ernest v. Red Cr. Cent. School Dist., 93 N.Y.2d at 674, 695 N.Y.S.2d 531, 717 N.E.2d 690 ; Gutelle v. City of New York, 55 N.Y.2d 794, 796, 447 N.Y.S.2d 422, 432 N.E.2d 124 ). Here, the County's submissions failed to eliminate all triable issues of fact as to whether its alleged negligence in failing to place guardrails near the concrete headwall on County Road 48 was a substantial factor in aggravating the plaintiff's injuries (see Gutelle v. City of New York, 55 N.Y.2d at 796, 447 N.Y.S.2d 422, 432 N.E.2d 124 ; Dodge v. County of Erie, 140 A.D.3d 1678, 1679, 33 N.Y.S.3d 628 ; Langer v. Xenias, 134 A.D.3d 906, 908, 23 N.Y.S.3d 261 ; Poveromo v. Town of Cortlandt, 127 A.D.3d at 838, 6 N.Y.S.3d 617 ; Haeg v. County of Suffolk, 64 A.D.3d 680, 881 N.Y.S.2d 907 ).
Accordingly, the Supreme Court properly denied the County's motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiffs' papers in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).