| Popolizio v County of Schenectady |
| 2008 NY Slip Op 02724 [49 AD3d 1117] |
| March 27, 2008 |
| Appellate Division, Third Department |
| Vincenzo Popolizio, Respondent, v County of Schenectady,Appellant. (And Two Other Related Actions.) (And a Third-PartyAction.) |
—[*1] Conway & Kirby, L.L.P., Niskayuna (Andrew W. Kirby of counsel), forrespondent.
Carpinello, J. Appeal from that part of an order of the Supreme Court (Reilly, Jr., J.), enteredMarch 28, 2007 in Schenectady County, which partially denied defendant's motion for summaryjudgment dismissing the complaint.
While driving down Gallupville Road in the Town of Duanesburg, Schenectady County, on asnowy December night, plaintiff was unable to negotiate a sharp curve at the end of a steep downgrade in the road. His vehicle slid across the opposite lane of traffic, off the road and into a deepdrainage ditch. Given its width, depth and steep side slopes, the ditch was not traversable. In thisaction commenced by plaintiff to recover for his resulting injuries, defendant argues that itsmotion for summary judgment dismissing the complaint in its entirety should have beengranted.[FN1] Unpersuaded, we affirm.[*2]
In support of summary judgment, defendant submitted theaffidavit of an expert who opined that Gallupville Road was properly striped, signed andmaintained within all appropriate state and traffic engineering guidelines and can be safelynegotiated by vehicles traveling at a reasonable rate of speed.[FN2] This expert further opined that it was not necessary to install a guide rail at the accident site. Inaddition, defendant submitted the affidavit of its director of public works establishing that it hadno prior written notice of any problems with this section of Gallupville Road or prior notice ofany accidents in the vicinity. Assuming, without deciding, that these submissions were sufficientto make a prima facie showing of entitlement to summary judgment on the issue of whether theroad was in a reasonably safe condition at the time of plaintiff's accident, plaintiff met his shiftedburden of raising triable issues of fact (see Hill v Town of Reading, 18 AD3d 913, 915-916 [2005]).
First, plaintiff submitted proof establishing that, at the time of the accident, he was onlytraveling 10 to 15 miles per hour in snow and ice conditions (the speed limit on this portion ofthe road was 15 miles per hour) (cf.Sherman v County of Cortland, 18 AD3d 908 [2005], lv denied 5 NY3d 713[2005]), he had driven this particular road only one other time (cf. Abair v Town of N. Elba, 35 AD3d935 [2006]; Howard v Tylutki, 305 AD2d 907 [2003]) and other motorists hadpreviously slid off this curve and into the same ditch. Plaintiff also submitted expert affidavitsdetailing that a guide rail was once in place on this curve, the ditch used to be further from theedge of the road and the ditch was originally designed to be two feet deep with slopes one foothorizontal for every 1½ feet down vertically (i.e, on a ratio of 1:1½). By the date ofthe accident, however, there was no guide rail in place, the ditch was 12 feet wide, located only1½ feet from the edge of the pavement (due to road widening projects) and its depthexceeded four feet with very steep slopes (on a ratio of 1:2).[FN3] These experts established that, in light of the slope, contour and bend of the road in the vicinityof the accident, coupled with the ditch's width, depth and slopes, the road and ditch were a hazardto motorists and a guide rail system should have been in place to prevent vehicles from slidingoff the road into it. Other alternatives to remedy the hazard presented by this ditch, according tothese experts, included filling in the ditch to its original design depth, altering its slopes to makethem less steep, reducing its width or utilizing underground piping to accommodate culvertoutfall. These experts further opined that these failures on defendant's part were a proximatecause of this accident. As triable issues of fact remained unresolved on this record, summaryjudgment in defendant's favor was unwarranted (see Hill v Town of Reading, supra;Merchant v Town of Halfmoon, 194 AD2d [*3]1031[1993]; cf. Abair v Town of N. Elba, supra; Sherman v County of Cortland,supra).
Two final points merit brief discussion. First, since questions of fact exist concerningwhether defendant affirmatively created the defective condition of the road, the absence of priorwritten notice of such defect did not entitle it to summary judgment (see e.g. Gagnon v City of SaratogaSprings, 14 AD3d 845 [2005]; Akley v Clemons, 237 AD2d 780, 781-782[1997]). Furthermore, defendant did not sufficiently demonstrate that it engaged in a deliberatedecision-making process concerning the subject road and, therefore, failed to demonstrate itsentitlement to summary judgment on the basis of qualified immunity (see Friedman v State ofNew York, 67 NY2d 271, 283 [1986]; Winney v County of Saratoga, 8 AD3d 944, 945 [2004];Merchant v Town of Halfmoon, supra).
Mercure, J.P., Peters, Spain and Lahtinen, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: To the extent that plaintiff wasalleging that defendant was negligent in failing to clear snow and ice from Gallupville Road onthe day of his accident, Supreme Court found that there was a storm in progress and therefore anysuch allegations must be dismissed. Plaintiff does not take issue with this finding.
Footnote 2: Based on a notation in a policereport by an officer who did not witness the accident, this expert opined that plaintiff was nottraveling at a reasonable rate of speed.
Footnote 3: According to plaintiff'ssubmissions, defendant "re-ditched" the area of the subject curve in 1999 at which time thesubject ditch was made "noticeably deeper and steeper."