| Bresciani v County of Dutchess, N.Y. |
| 2009 NY Slip Op 03684 [62 AD3d 639] |
| May 5, 2009 |
| Appellate Division, Second Department |
| Richard Bresciani et al., Respondents, v County ofDutchess, New York, Appellant. |
—[*1] E. Stewart Jones, PLLC, Troy, N.Y. (Meghan Rielly Keenholts of counsel), forrespondents.
In an action to recover damages for personal injuries and wrongful death, etc., the defendantappeals from an order of the Supreme Court, Dutchess County (Sproat, J.), dated March 10,2008, which denied its motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On June 26, 2004 Mirella Bresciani was killed on Noxon Road (County Route 21), in theTown of LaGrange, when her car went off the road and crashed into a tree. The police accidentreport listed the roadway surface condition as "Wet," and noted "Pavement Slippery." Herhusband, individually, and her children who were the executors of her estate, commenced thisaction against the County of Dutchess. The plaintiffs contend, inter alia, that the defendant failedto appropriately investigate and remedy a known dangerous condition on the county road andperformed negligent repair and maintenance on it. The County moved for summary judgmentcontending, among other things, that it was entitled to qualified immunity for its deliberativedecision-making process because a capital improvement project encompassing the county road inquestion was in the planning stages at the time of the accident. The Supreme Court denied themotion, and we affirm.
In the area of traffic design engineering, a municipality will generally be accorded qualifiedimmunity from liability arising out of its highway planning decisions (see Friedman v Stateof New York, 67 NY2d 271, 284 [1986]). However, a municipality may be held liable if,after being made aware [*2]of a dangerous traffic condition, itdoes not undertake an adequate study to determine what reasonable measures may be necessaryto alleviate the condition, or, having determined what reasonable measures were necessary, itunjustifiably delays in taking them (see Friedman v State of New York, 67 NY2d at284-286). Here, the County failed to establish its prima facie entitlement to summary judgmenton the ground of qualified immunity (see Hepburn v Croce, 295 AD2d 475 [2002];see generally Friedman v State of New York, 67 NY2d 271 [1986]). In particular, theCounty's submissions failed to establish as a matter of law that, once it was made aware that thesubject roadway became dangerously slippery as water accumulated on it in wet weather, theCounty undertook an adequate study to determine what, if any, remedial measures werenecessary, or that it did not unjustifiably delay in implementing such measures (see Friedmanv State of New York, 67 NY2d at 284; Burgess v Town of Hempstead, 161 AD2d616, 617 [1990]). The County's failure to satisfy its prima facie burden required denial of itsmotion without regard to the sufficiency of the plaintiffs' papers in opposition (see Hepburn vCroce, 295 AD2d at 477). Fisher, J.P., Angiolillo, Balkin and Belen, JJ., concur.