Opinion
Index No. 601316/2018 Mot. Seq. Nos. 001 - MD 002 - Mot-D
08-15-2019
MICHAEL F. MARTINEZ and JESSICA MARTINEZ, Plaintiffs, v. TOWN OF BABYLON, COUNTY OF SUFFOLK and STEFANO BELLOISI, Defendants.
PLAINTIFFS' ATTORNEY Dell & Dean, PLLC DEFENDANTS' ATTORNEYS Bartlett LLP Attorneys for Defendant Town of Babylon, Burrati, Rothenberg & Burns Attorneys for Defendant Stefano Belloisi, Dennis M. Brown Suffolk County Attorney Suffolk County Attorney's Office Attorneys for County of Suffolk, By: Renee G. Pardo Assistant County Attorney
Unpublished Opinion
Orig. Return Date: 09/21/2018
Mot. Submit Date: 02/05/2019
Orig. Return Date: 11 /07/2018
PLAINTIFFS' ATTORNEY Dell & Dean, PLLC
DEFENDANTS' ATTORNEYS Bartlett LLP Attorneys for Defendant Town of Babylon, Burrati, Rothenberg & Burns Attorneys for Defendant Stefano Belloisi, Dennis M. Brown Suffolk County Attorney Suffolk County Attorney's Office Attorneys for County of Suffolk, By: Renee G. Pardo Assistant County Attorney
PRESENT: Hon. Martha L. Luft Acting Justice Supreme Court
DECISION AND ORDER
MARTHA L. LUFT, A J.S.C.
Upon the e-filed documents numbered 15 through 56, it is
ORDERED that the motion (#001) by the defendant County of Suffolk and the motion by the defendant (#002) Town of Babylon are hereby consolidated for the purposes of this determination; it is further
ORDERED that the motion by the defendant County of Suffolk for, inter alia, an order granting summary judgment in its favor and dismissing the complaint as asserted against it is denied; and it is further
ORDERED that the motion by the defendant Town of Babylon for, inter alia, an order compelling the preservation and inspection of certain evidence, namely the vehicle involved in the subject accident, is granted to the extent that counsel for the parties shall appear at a pre-motion conference on September 24, 2019 at 9:30 a.m. at the Alan D. Oshrin Supreme Court Building, 1 Court Street, Room A 362, Riverhead, New York, and is otherwise denied.
This is an action to recover damages for injuries allegedly sustained by the plaintiff Michael Martinez as the result of a motor vehicle accident which occurred on April 11, 2017, on Prairie Drive, near the intersection with Deer Park Avenue, in the Town of Babylon, New York. The accident allegedly happened when a vehicle owned and operated by the defendant Stefano Bellosi struck the plaintiff as he was standing on the road shoulder. The plaintiff Jessica Martinez also claims derivatively for loss of services. By their complaint and notices of claim, the plaintiffs allege, among other things, that the defendants Town of Babylon ("the Town") and County of Suffolk ("the County") were negligent in maintaining the roadway, as they failed to undertake a reasonable traffic study or to take reasonable measures to address vehicular traffic routinely speeding in the vicinity of the accident. By their answers, the Town and the County generally deny the material allegations as set forth in the complaint, and they assert several affirmative defenses and cross-claims.
The County now moves for summary judgment dismissing the complaint as asserted against it, arguing, among other things, that it had no duty to Mr. Martinez, as it does not own, manage, maintain, or control Prairie Drive, and that, in any event, it did not receive prior written notice of the alleged defect. In support, the County submits, inter alia, the affidavits of Paul Morano, an assistant civil engineer for the County's Department of Public Works, John Donovan, an investigator for the County, and Jason Richberg, Chief Deputy Clerk of the Suffolk County Legislature. The plaintiffs oppose the motion, arguing, among other things, that the County failed to establish its prima facie entitlement to summary judgment, as its submissions failed to address its duty as to Deer Park Avenue, or to address their allegation that the County failed to undertake a traffic study of the intersection where the accident occurred. Further, the plaintiffs allege that, despite the County's contentions to the contrary, it did receive prior written notice of the dangerous condition at the accident site, namely the speed of vehicular traffic in the immediate area. In opposition, the plaintiffs submit several documents, including emails purportedly sent by nonparty James Oppesdisano to the Town Supervisor, and a report by the Suffolk County School Traffic Zone Safety Commission.
A plaintiff seeking damages for personal injuries in a premises liability action must first establish, as a matter of law, that the defendant or defendants owed him or her a duty of reasonable care in maintaining the property (see Rivera v Nelson Realty, LLC, 7 N.Y.3d 530, 534, 825 N.Y.S.2d 422, 424 [2006]; Tagle v Jakob, 97N.Y.2d 165, 168, 737N.Y.S.2d 331, 333 [2001]; Alnashmi v Certified Analytical Group, Inc., 89 A.D.3d 10, 13, 929 N.Y.S.2d 620, 623 [2d Dept 2011]). Without this duty of reasonable care on the part of a defendant, there can be no breach of such duty and, therefore, no proximate cause of the plaintiffs injuries as a result of the breach (see Conneally v Diocese of Rockville Ctr., 116 A.D.3d 905, 984 N.Y.S.2d 127 [2d Dept 2014]; Ortega v Liberty Holdings, LLC, 111 A.D.3d 904, 976 N.Y.S.2d 147 [2d Dept 2013]; Nappi v Incorporated Vil. of Lynbrook, 19 A.D.3d 565, 796 N.Y.S.2d 537 [2d Dept 2005]). As a general rule, liability for a dangerous condition on property must be predicated upon ownership, occupancy, control, or special use of the property (see Reynolds v Avon Grove Props., 129 A.D.3d 932, 12 N.Y.S.3d 199 [2d Dept 2015]; Chernoguz v Mirrer Yeshiva Cent. Inst., 121 A.D.3d 737, 994 N.Y.S.2d 362 [2d Dept 2014]; Grover v Mastic Beach Prop. Owners Assn., 57 A.D.3d 729, 869 N.Y.S.2d 593 [2d Dept 2008]).
Where the owner of a premises is a municipality that has enacted a prior written notice statute, it will not be subjected to liability for injuries caused by a defective or dangerous condition on its premises unless it has received prior written notice of such condition or an exception to the prior written notice requirement applies (see Amabile v City of Buffalo, 93 N.Y.2d 471, 693 N.Y.S.2d 77 [1999]; Marciano v Village of Rockville Ctr., 136 A.D.3d 761, 24 N.Y.S.3d 520 [2d Dept 2016]; Palka v Village of Ossining, 120 A.D.3d 641, 992 N.Y.S.2d 273 [2d Dept 2014]; Long v City of Mount Vernon, 107 A.D.3d 765, 967 N.Y.S.2d 749 [2d Dept 2013]). As relevant 'to the County's motion, pursuant to Suffolk County Charter § C8-2A, the County will not be held liable for a defective or hazardous condition caused by the existence of a defective, out-of-repair, unsafe, dangerous, or obstructed condition upon any highway, street, road, or traffic signs, signals, or traffic control devices unless prior written notice of the condition that caused the plaintiffs injury was given, such written notice was sent by certified or registered mail to the Clerk of the Suffolk County Legislature, and the County failed to correct such condition within a reasonable time after the notice was received.
A municipality owes a nondelegable duty to adequately design, construct, and maintain its roadways in a reasonably safe condition, and as long as a highway is reasonably safe for people who obey the rules of the road, this duty is satisfied (see Stiuso v City of New York, 87 N.Y.2d 889 891 639 N.Y.S.2d 1009 [1995]; Friedman v State of New York, 67 N.Y.2d 271, 283, 502 N.Y.S.2d 669 [1986]; Gutelle v City of New York, 55 N.Y.2d 794, 795, 447 N.Y.S.2d 422 [1981]; Tomassi v Town of Union, 46 N.Y.2d 91, 98, 412 N.Y.S.2d 842 [1978]). However, the courts must also accord qualified immunity to the municipality's highway planning decisions, and 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 Turturro v City of New York, 28 N.Y.3d 469, 480, 45 N.Y.S.3d 874 [2016]; Friedman v State of New York, supra, at 283-284; Warren v Evans, 144 A.D.3d 901, 902, 42 N.Y.S.3d 37 [2d Dept 2016]). 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 [I960]; see also Turturro v City of New York, supra; Affleck v Buckley, 96 N.Y.2d 553, 556, 732 N.Y.S.2d 625 [2001]; Ernest v Red Creek Cent. School Dist, 93 N.Y.2d 664, 673, 695 N.Y.S.2d 531 [1999]). Nevertheless, a municipality may be held liable if, after being made aware of a dangerous traffic condition, it does not undertake an adequate study to determine what reasonable measures may be necessary to alleviate the condition (see Turturro v City of New York, supra, at 480; Ernest v Red Creek Cent. School Dist., supra; Friedman v State, supra at 284; Bresciani v County of Dutchess, 62 A.D.3d 639, 640, 878 N.Y.S.2d 410 [2d Dept 2009]).
Although the County demonstrated, prima facie, that it did not own, manage, maintain, or control Prairie Drive at the time of the accident, and thus, it owed no duty to Mr. Martinez and cannot be held liable for Mr. Martinez's injuries on that basis by Mr. Morano's affidavit (see Rivera v Nelson Realty, LLC, supra; Reynolds v Avon Grove Props., supra; Conneally v Diocese of Rockville Ctr., supra), its submissions in support of its motion failed to adequately address the plaintiffs' allegations that it failed to undertake a traffic study which entertained and passed on the very same question of risk that is at issue in this case (see Weiss v Fote, supra, at 588; Bednoski v County of Suffolk, 145 A.D.3d 943, 44 N.Y.S.3d 485 [2d Dept 2016]; Bresciani v County of Dutchess, supra). Although the affidavits of Mr. Donovan and Mr. Richberg demonstrate, prima facie, that the County had no prior written notice of any defect or dangerous condition on Prairie Road (see Amabile v City of Buffalo, supra; Marciano v Village of Rockville Ctr., supra; Palka v Village of Ossining, supra; Long v City of Mount Vernon, supra), these affidavits are devoid of any mention of complaints as to the intersection with Deer Park Avenue, and they do not make any reference to whether a traffic study had ever been conducted at the accident site (see Busterna v County of Suffolk, 169 A.D.3d 636, 91 N.Y.S.3d 719 [2d Dept 2019]; see also Turturro v City of New York, supra; Friedman v State, supra; Bresciani v County of Dutchess, supra). As the County failed to make a prima facie showing of entitlement to summary judgment, the motion is denied, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316 [1985]).
In light of the foregoing, the County's motion for summary judgment is denied, and the Town's motion to compel discovery is granted to the extent described above, and is otherwise denied.