| Kosoff-Boda v County of Wayne |
| 2007 NY Slip Op 08560 [45 AD3d 1337] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| Elizabeth Kosoff-Boda, Appellant, v County of Wayne, Respondentand Third-Party Plaintiff. Charles R. Boda et al., Third-Party Defendants-Respondents. (AppealNo. 1.) |
—[*1] Boylan, Brown, Code, Vigdor & Wilson, LLP, Rochester (Scott M. Mooney of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Wayne County (Stephen R. Sirkin, A.J.),entered March 30, 2006 in a personal injury action. The order granted defendant's motion forsummary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedlysustained when the motorcycle upon which she was a passenger collided with a vehicle at anintersection. According to plaintiff, defendant and third-party plaintiff (defendant) failed toprovide sufficient visibility at the intersection and to provide a proper warning of the two-waystop. In appeal No. 1, plaintiff appeals from an order granting defendant's motion for summaryjudgment dismissing the complaint and, in appeal No. 2, she appeals from an order denying hermotion for leave to renew her opposition to defendant's motion.
We conclude in appeal No. 1 that Supreme Court properly granted defendant's motion. It iswell established that, "in the field of traffic design engineering, the [municipality] is accorded aqualified immunity from liability arising out of a highway planning decision" (Friedman vState of New York, 67 NY2d 271, 283 [1986]; see generally Weiss v Fote, 7 NY2d579, 584-586 [1960], rearg denied 8 NY2d 934 [1960]). Pursuant to the doctrine ofqualified immunity, "liability for injury arising out of the operation of a duly executed highwaysafety plan may only be predicated on proof that the plan either was evolved without adequatestudy or lacked reasonable basis" (Weiss, 7 NY2d [*2]at589; see Friedman, 67 NY2d at 284). Once a municipality "is made aware of a dangeroustraffic condition it must undertake reasonable study thereof with an eye toward alleviating thedanger[, and] after the [municipality] implements a traffic plan it is 'under a continuing duty toreview its plan in the light of its actual operation' " (Friedman, 67 NY2d at 284, quotingWeiss, 7 NY2d at 587). Here, in support of its motion defendant submitted evidence thatits signs were installed in accordance with the Manual of Uniform Traffic Control Devices andthat it conducted periodic reviews of traffic volume. In addition, defendant established that it hadnot received any written complaints concerning the intersection and that only one accident nearthe intersection had been reported in the two years prior to plaintiff's accident. We thus concludethat defendant met its initial burden on the motion by establishing that its highway plan was theresult of adequate study and had a reasonable basis (see Weiss, 7 NY2d at 589;Gregorius v County of Livingston, 280 AD2d 936 [2001]). The contention of plaintiffthat the intersection was improperly designed is supported only by her attorney's affidavit andthus is insufficient to raise an issue of fact to defeat defendant's motion (see Green v Countyof Niagara, 184 AD2d 1044 [1992]). In addition, her submission of additional trafficaccident reports is insufficient to raise a triable issue of fact whether defendant was "made awareof a dangerous traffic condition . . . [to require it to] undertake reasonable studythereof with an eye toward alleviating the danger" (Friedman, 67 NY2d at 284).Those accident reports lack the requisite specificity to establish that defendant was aware ofa dangerous traffic condition, and the mere hope of plaintiff that further discovery might providethat specificity is insufficient to defeat defendant's motion (see Preferred Capital v PBK,Inc., 309 AD2d 1168, 1169 [2003]).
We conclude with respect to appeal No. 2 that the court properly denied plaintiff's motion forleave to renew pursuant to CPLR 2221. The allegedly new materials submitted by plaintiff insupport of the motion were matters of public record available before the court issued its decisionon defendant's motion, and thus plaintiff failed to establish that those materials were not inexistence or were unavailable at the time of defendant's motion (see generally Welch Foods vWilson, 247 AD2d 830 [1998]). Present—Hurlbutt, J.P., Martoche, Smith, Centra andFahey, JJ.