Opinion
10-19-2016
Vanessa RAMIREZ, appellant, v. STATE of New York, et al., respondents. (Action No. 1). Angela Moreno, appellant, v. State of New York, et al., respondents. (Action No. 2). Yadira Sinche Rivera, appellant, v. State of New York, et al., respondents. (Action No. 3). Yadira Velasquez, appellant, v. State of New York, et al., respondents. (Action No. 4). Mayra Granados, etc., appellant, v. State of New York, et al., respondents. (Action No. 5). Yesica Agustina Escobar Fuentes, et al., appellants, v. State of New York, et al., respondents. (Action No. 6).
Morton Buckvar, New York, NY (Eric Buckvar of counsel), for appellant Vanessa Ramirez; Michael N. David, New York, NY, for appellant Angela Moreno; Sullivan Papain Block McGrath & Cannavo, P.C., New York, NY (Brian J. Shoot and John Nash of counsel), for appellants Yadira Sinche Rivera, Yadira Velasquez, and Mayra Granados; Simon, Eisenberg & Baum, LLP, New York, NY (Sagar Shah of counsel), for appellants Yesica Agustina Escobar Fuentes and Leydi Arely Fuentes Paz (one brief filed). Eric T. Schneiderman, Attorney General, New York, NY (Anisha S. Dasgupta and Matthew W. Grieco of counsel), for respondents.
Morton Buckvar, New York, NY (Eric Buckvar of counsel), for appellant Vanessa Ramirez; Michael N. David, New York, NY, for appellant Angela Moreno; Sullivan Papain Block McGrath & Cannavo, P.C., New York, NY (Brian J. Shoot and John Nash of counsel), for appellants Yadira Sinche Rivera, Yadira Velasquez, and Mayra Granados; Simon, Eisenberg & Baum, LLP, New York, NY (Sagar Shah of counsel), for appellants Yesica Agustina Escobar Fuentes and Leydi Arely Fuentes Paz (one brief filed).
Eric T. Schneiderman, Attorney General, New York, NY (Anisha S. Dasgupta and Matthew W. Grieco of counsel), for respondents.
JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
In five related claims to recover damages for personal injuries and one related claim to recover damages for wrongful death, the claimants jointly appeal from six respective judgments of the Court of Claims (Ruderman, J.), all dated May 15, 2014, which, upon six respective decisions of the same court all dated April 14, 2014, made after a trial, are in favor of the defendants and against them, dismissing the claims.
ORDERED that the judgments are affirmed; and it is further,
ORDERED that the defendants are awarded one bill of costs.
During the early morning hours of June 14, 2008, a cargo van with 12 unrestrained passengers in the windowless cargo hold drifted into the median of Interstate 87 over the tapered, turned-down portion of a guardrail, and struck the concrete support pillar of a pedestrian bridge, killing the van driver, the front-seat passenger, and one passenger in the cargo hold. The remaining passengers in the cargo hold sustained various injuries. Some of the surviving passengers, and the administratrix of the estate of one of the decedents, commenced these claims against the defendants, the State of New York and the New York State Thruway Authority, seeking to hold the defendants liable for not installing a longer guardrail which they allege would have greatly reduced the severity of their injuries. Following a nonjury trial, the Court of Claims dismissed the claims based upon, among other things, the doctrine of qualified immunity. We affirm.
“A municipality owes the traveling public the absolute duty of keeping its highways in a reasonably safe condition” (Ames v. City of New York, 177 A.D.2d 528, 531, 575 N.Y.S.2d 917 ; see Friedman v. State of New York, 67 N.Y.2d 271, 283, 502 N.Y.S.2d 669, 493 N.E.2d 893 ; Langer v. Xenias, 134 A.D.3d 906, 23 N.Y.S.3d 261 ; Iacone v. Passanisi, 133 A.D.3d 717, 718, 19 N.Y.S.3d 583 ). This duty, which extends to furnishing guardrails (see Lattanzi v. State of New York, 53 N.Y.2d 1045, 442 N.Y.S.2d 499, 425 N.E.2d 887 ), “ ‘is measured by the courts with consideration given to the proper limits on intrusion into the municipality's planning and decision-making functions' ” (Kuhland v. City of New York, 81 A.D.3d 786, 787, 916 N.Y.S.2d 637, quoting Friedman v. State of New York, 67 N.Y.2d at 283, 502 N.Y.S.2d 669, 493 N.E.2d 893 ). Thus, “a governmental body is accorded a qualified immunity from liability arising out of a highway safety planning decision” (Iacone v. Passanisi, 133 A.D.3d at 718, 19 N.Y.S.3d 583 ; see Kuhland v. City of New York, 81 A.D.3d at 787, 916 N.Y.S.2d 637 ). To establish its entitlement to qualified immunity, the governmental body must demonstrate “that the relevant discretionary determination by the governmental body was the result of a deliberate decision-making process” (Iacone v. Passanisi, 133 A.D.3d at 718, 19 N.Y.S.3d 583 ; see Affleck v. Buckley, 96 N.Y.2d 553, 732 N.Y.S.2d 625, 758 N.E.2d 651 ; Friedman v. State of New York, 67 N.Y.2d 271, 502 N.Y.S.2d 669, 493 N.E.2d 893 ; Alexander v. Eldred, 63 N.Y.2d 460, 483 N.Y.S.2d 168, 472 N.E.2d 996 ; Tomassi v. Union, 46 N.Y.2d 91, 412 N.Y.S.2d 842, 385 N.E.2d 581 ; Barone v. County of Suffolk, 85 A.D.3d 836, 836, 925 N.Y.S.2d 614 ; Bresciani v. County of Dutchess, 62 A.D.3d 639, 878 N.Y.S.2d 410 ; Scott v. City of New York, 16 A.D.3d 485, 791 N.Y.S.2d 184 ). “A municipality is entitled to qualified immunity where a governmental planning body ‘has entertained and passed on the very same question of risk as would ordinarily go to the jury’ ” (Turturro v. City of New York, 77 A.D.3d 732, 735, 908 N.Y.S.2d 738, quoting Weiss v. Fote, 7 N.Y.2d 579, 588, 200 N.Y.S.2d 409, 167 N.E.2d 63 ). Accordingly, where the decision made by the municipality or governmental body was not the product of a governmental plan or study, the doctrine of qualified immunity is inapplicable (see Klein v. New York State Thruway Auth., 220 A.D.2d 486, 632 N.Y.S.2d 184 ; Cummins v. County of Onondaga, 198 A.D.2d 875, 605 N.Y.S.2d 694 ).
Here, the Court of Claims correctly applied the doctrine of qualified immunity based on the evidence the defendants submitted at trial that the guardrail was designed pursuant to the design standards set forth by the New York State Department of Transportation, which were the result of a deliberate decision-making process of the type afforded immunity from judicial interference (see Kelley v. State of New York, 133 A.D.3d 1337, 20 N.Y.S.3d 289 ; Selca v. City of Peekskill, 78 A.D.3d 1160, 912 N.Y.S.2d 287 ; Galvin v. State of New York, 245 A.D.2d 418, 666 N.Y.S.2d 673 ; cf. Madden v. Town of Greene, 64 A.D.3d 1117, 883 N.Y.S.2d 392 ).
The claimants' remaining contentions are unpreserved for appellate review or without merit.