KOSOFF BODA v. COUNTY OF WAYNE (2007)

Plaintiff commenced this action seeking damages for injuries she allegedly sustained when the motorcycle upon which she was a passenger collided with a vehicle at an intersection.   According to plaintiff, defendant-third-party plaintiff (defendant) failed to provide sufficient visibility at the intersection and to provide a proper warning of the two-way stop.   In appeal No. 1, plaintiff appeals from an order granting defendant's motion for summary judgment dismissing the complaint and, in appeal No. 2, she appeals from an order denying her motion 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 is well established that, “in the field of traffic design engineering, the [municipality] is accorded a qualified immunity from liability arising out of a highway planning decision” (Friedman v. State of New York, 67 N.Y.2d 271, 283, 502 N.Y.S.2d 669, 493 N.E.2d 893;  see generally Weiss v. Fote, 7 N.Y.2d 579, 584-586, 200 N.Y.S.2d 409, 167 N.E.2d 63, rearg. denied 8 N.Y.2d 934, 204 N.Y.S.2d 1025, 168 N.E.2d 857).   Pursuant to the doctrine of qualified immunity, “liability for injury arising out of the operation of a duly executed highway safety plan may only be predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis” (Weiss, 7 N.Y.2d at 589, 200 N.Y.S.2d 409, 167 N.E.2d 63;  see Friedman, 67 N.Y.2d at 284, 502 N.Y.S.2d 669, 493 N.E.2d 893).   Once a municipality “is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger[, and] after the [municipality] implements a traffic plan it is ‘under a continuing duty to review its plan in the light of its actual operation’ ” (Friedman, 67 N.Y.2d at 284, 502 N.Y.S.2d 669, 493 N.E.2d 893, quoting Weiss, 7 N.Y.2d at 587, 200 N.Y.S.2d 409, 167 N.E.2d 63).   Here, in support of its motion defendant submitted evidence that its signs were installed in accordance with the Manual of Uniform Traffic Control Devices and that it conducted periodic reviews of traffic volume.   In addition, defendant established that it had not received any written complaints concerning the intersection and that only one accident near the intersection had been reported in the two years prior to plaintiff's accident.   We thus conclude that defendant met its initial burden on the motion by establishing that its highway plan was the result of adequate study and had a reasonable basis (see Weiss, 7 N.Y.2d at 589, 200 N.Y.S.2d 409, 167 N.E.2d 63;  Gregorius v. County of Livingston, 280 A.D.2d 936, 720 N.Y.S.2d 863).   The contention of plaintiff that the intersection was improperly designed is supported only by her attorney's affidavit and thus is insufficient to raise an issue of fact to defeat defendant's motion (see Green v. County of Niagara, 184 A.D.2d 1044, 584 N.Y.S.2d 362).   In addition, her submission of additional traffic accident reports is insufficient to raise a triable issue of fact whether defendant was “made aware of a dangerous traffic condition ․ [to require it to] undertake reasonable study thereof with an eye toward alleviating the danger” (Friedman, 67 N.Y.2d at 284, 502 N.Y.S.2d 669, 493 N.E.2d 893).   Those accident reports lack the requisite specificity to establish that defendant was aware of a dangerous traffic condition, and the mere hope of plaintiff that further discovery might provide that specificity is insufficient to defeat defendant's motion (see Preferred Capital v. PBK, Inc., 309 A.D.2d 1168, 1169, 765 N.Y.S.2d 405).

 We conclude with respect to appeal No. 2 that the court properly denied plaintiff's motion for leave to renew pursuant to CPLR 2221.   The allegedly new materials submitted by plaintiff in support of the motion were matters of public record available before the court issued its decision on defendant's motion, and thus plaintiff failed to establish that those materials were not in existence or were unavailable at the time of defendant's motion (see generally Welch Foods v. Wilson, 247 A.D.2d 830, 669 N.Y.S.2d 109).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: