Opinion
2016–06809 Index No. 22958/10
02-06-2019
James BUSTERNA, Respondent, v. COUNTY OF SUFFOLK, Appellant, et al., Defendants.
Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Christopher A. Jeffreys of counsel), for appellant. Raphaelson & Levine, New York, N.Y. (Steven C. November of counsel), for respondent.
Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Christopher A. Jeffreys of counsel), for appellant.
Raphaelson & Levine, New York, N.Y. (Steven C. November of counsel), for respondent.
SHERI S. ROMAN, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDERORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly was injured when the motorcycle he was operating collided with a motor vehicle at the T-intersection of Commack Road and Drakeford Avenue in Babylon. Thereafter, the plaintiff commenced this action against the driver of the motor vehicle, the Town of Babylon, and the County of Suffolk. The plaintiff alleged that the County was liable for failing to remove foliage obstructing a view of the road and/or failing to maintain a white stop line located on Drakeford Avenue. Additionally, the plaintiff alleged in his notice of claim that the County allowed "the roadway to be and remain in such a design and configuration which would cause motor vehicle accidents." The plaintiff further alleged in his pleadings that the County had failed to conduct an adequate traffic study after it was made aware of the dangerous condition regarding vehicles attempting to cross Commack Road to enter a driveway to a shopping center that was located on the opposite end of Drakeford Avenue.
After the completion of discovery, the County moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. In the order appealed from, the Supreme Court, inter alia, denied the County's motion. The County appeals.
On its motion, the County addressed the plaintiff's roadway defect allegation by submitting evidence that there was no obstruction of view and that the white stop line was clearly visible (see Dorr v. Farnham , 57 A.D.3d 1404, 1406, 871 N.Y.S.2d 554 ; Price v. Hampson , 142 A.D.2d 974, 975, 530 N.Y.S.2d 392 ; cf. Chang v. City of New York , 142 A.D.3d 401, 402, 37 N.Y.S.3d 236 ; Nichols–Sisson v. Windstar Airport Serv., Inc. , 99 A.D.3d 770, 773, 952 N.Y.S.2d 223 ). However, the County failed to address the plaintiff's allegations of design defects and the allegations in his pleadings regarding the traffic study (see e.g. Turturro v. City of New York , 28 N.Y.3d 469, 480, 45 N.Y.S.3d 874, 68 N.E.3d 693 ; Friedman v. State of New York , 67 N.Y.2d 271, 286, 502 N.Y.S.2d 669, 493 N.E.2d 893 ; Bresciani v. County of Dutchess, N.Y. , 62 A.D.3d 639, 640, 878 N.Y.S.2d 410 ). Accordingly, the County failed to establish its prima facie entitlement to judgment as a matter of law.
Therefore, we agree with the Supreme Court's determination denying the County's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ROMAN, J.P., HINDS–RADIX, MALTESE and LASALLE, JJ., concur.