| Racalbuto v Redmond |
| 2007 NY Slip Op 09843 [46 AD3d 1051] |
| December 13, 2007 |
| Appellate Division, Third Department |
| Joseph Racalbuto, Sr. et al., Appellants, v Joseph Redmond et al.,Defendants, and County of Delaware, Respondent. |
—[*1] Drake, Loeb, Heller, Kennedy, Gogerty, Gaba & Rodd, P.L.L.C., New Windsor (ChristineGasser of Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, ofcounsel), for respondent.
Kane, J. Appeals (1) from an order of the Supreme Court (Lebous, J.), entered September 11,2006 in Delaware County, which granted a motion by defendant County of Delaware forsummary judgment dismissing the complaint against it, and (2) from the judgment enteredthereon.
In November 2001, plaintiff Joseph Racalbuto, Sr. (hereinafter plaintiff) was driving hisvehicle south on County Route 21 in the Town of Franklin, Delaware County. When plaintiffattempted to make a left-hand turn onto Bennett Hollow Road, his vehicle was struck by a cardriven by defendant Joseph Redmond, III, who was traveling north on County Route 21. TheT-intersection between these roads is located at the crest of a hill. Each driver indicated that hedid not see the other until immediately before the impact.
Plaintiff and his wife, derivatively, commenced this personal injury action against severaldefendants alleging, among other things, that defendant County of Delaware (hereinafterdefendant) negligently failed to maintain the intersection in a safe and proper condition. [*2]Defendant moved for summary judgment dismissing the complaintagainst it. Supreme Court granted the motion, finding that defendant was entitled to qualifiedimmunity for its highway planning decisions. Plaintiffs appeal.
Because defendant established its entitlement to summary judgment, we affirm. "Amunicipality is 'accorded a qualified immunity from liability arising out of a highway planningdecision,' but 'may be held liable when its study of a traffic condition is plainly inadequate orthere is no reasonable basis for its traffic plan' " (Winney v County of Saratoga, 8 AD3d 944, 945 [2004], quotingFriedman v State of New York, 67 NY2d 271, 283-284 [1986] [internal citation omitted];see Affleck v Buckley, 96 NY2d 553, 556 [2001]).
County Route 21 was originally constructed in 1949, prior to the publication of the firstwritten national standards governing rural highways. Wayne Reynolds, a licensed professionalengineer and the commissioner of defendant's department of public works, averred that the roadmet all applicable standards at the time of construction. A 1982 study revealed that theintersection in question did not meet then-applicable standards for highway safety because the 55mile-per-hour speed limit was too high for the limited sight distance. Defendant addressed thissituation by placing signs near the intersection on County Route 21 facing both directionsindicating the curve and warning that an intersection was ahead, as well as speed advisory signssuggesting a 35 mile-per-hour speed for northbound vehicles and 40 mile-per-hour speed forsouthbound vehicles. Studies in 1983 and 1984 addressed sight distance problems on BennettHollow Road. Following these studies, the advisory speed for southbound vehicles was loweredto 35 miles per hour. The parties agree that only the state, not defendant, is permitted to changethe speed limit on any portion of County Route 21. Although defendant could have filed arequest with the state for a reduced speed limit, in light of defendant's placing of advisory speedlimit signs, the failure to make a request of the state does not render defendant's traffic planunreasonable.
In 1989, defendant completed a project to flatten the side slopes of the intersection toimprove sight distance for drivers on Bennett Hollow Road. A citizen complaint to defendant in1990 opined that the previous remedial measures were insufficient and the intersection was stilldangerous. A 1990 study evaluated the feasibility of redirecting the end of Bennett Hollow Road,which would have relocated the intersection at issue here, presumably improving sight distancefrom all directions at the newly-located intersection. This proposal was never carried out.However, defendant was not required to undertake extensive reconstruction and upgrade the roadto comply with current standards (seeCave v Town of Galen, 23 AD3d 1108, 1109 [2005]; Evans v Stranger, 307AD2d 439, 441 [2003]). Traffic counts were obtained on County Route 21, with the latest beingundertaken in 1997. In late 1999, defendant widened the shoulder of County Route 21 byremoving trees near the roadway across from the T intersection. Although an accident historylisted 11 accidents in the general vicinity of the intersection in the 11 years prior to the accident,only one was directly at the intersection. The one accident at the intersection, as well as severalof the other 10, was caused by an animal in the road.
Throughout the years, defendant acted in response to studies and fulfilled its continuing dutyto review the highway plan in light of changing conditions and actual implementation of the plan(see Friedman v State of New York, 67 NY2d at 284; Weiss v Fote, 7 NY2d 579,587 [1960]). We are not permitted to substitute our judgment for the municipality's considereddecisions. An accident history of only one accident at this intersection in 11 years, which wascaused by a deer rather than a turning vehicle, did not put defendant on notice that the [*3]intersection was dangerous or needed to be addressed. Havingdemonstrated a reasonable basis for its highway planning decisions, defendant was entitled toqualified immunity from liability for the accident here.
Mercure, J.P., Spain, Carpinello and Mugglin, JJ., concur. Ordered that the order andjudgment are affirmed, without costs.