| Mare v City of New York |
| 2013 NY Slip Op 08414 [112 AD3d 793] |
| December 18, 2013 |
| Appellate Division, Second Department |
| Joseph Mare, Respondent, v City of New York,Appellant, et al., Defendants. |
—[*1] Rubenstein & Rynecki, Brooklyn, N.Y. (Kliopatra Vrontos of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant City of NewYork appeals from an order of the Supreme Court, Queens County (Flug, J.), datedMarch 5, 2012, which denied its motion for summary judgment dismissing the complaintinsofar as asserted against it.
Ordered that the order is affirmed, with costs.
The plaintiff was injured when he was struck by a vehicle at or near the intersectionof Francis Lewis Boulevard and 172nd Street in Queens. The plaintiff commenced thisaction against, among others, the City of New York, alleging, inter alia, that the accidentwas caused by the unsafe design of the crosswalk and traffic signals at the subjectintersection. The City moved for summary judgment dismissing the complaint insofar asasserted against it, and the Supreme Court denied the motion.
The City failed to meet its prima facie burden of establishing its entitlement tojudgment as a matter of law. "In the area of traffic design engineering, a municipalitywill generally be accorded qualified immunity from liability arising out of its highwayplanning decisions" (Turturro vCity of New York, 77 AD3d 732, 735 [2010]; see Kuhland v City of NewYork, 81 AD3d 786, 787 [2011]). "A governmental body may be liable for atraffic planning decision only when its study is 'plainly inadequate or there is noreasonable basis for its . . . plan' " (Affleck v Buckley, 96 NY2d553, 556 [2001], quoting Friedman v State of New York, 67 NY2d 271, 284[1986]).
Here, the City failed to establish, prima facie, that there was a reasonable basis for itstraffic plan at the subject intersection. In particular, the evidence presented by the Cityfailed to establish that it undertook a study which entertained and passed on the verysame question of risk that is at issue in this case (see Weiss v Fote, 7 NY2d 579,588 [1960]; Kuhland v City of New York, 81 AD3d at 787), or that the design ofthe intersection and crosswalk was reasonably safe (see Barone v County of Suffolk, 85 AD3d 836 [2011]; McArthur v Muhammad, 46AD3d 640 [2007]; Scott vCity of New York, 16 AD3d 485 [2005]). Since the City failed to satisfy itsprima facie burden, its motion was properly denied without regard to the sufficiency ofthe opposition papers (seeBresciani v County of Dutchess, N.Y., 62 AD3d 639, 640 [2009]).[*2]
The City's remaining contentions are eitherwithout merit or not properly before this Court. Rivera, J.P., Skelos, Chambers and Hall,JJ., concur.