DOXIADIS v. Metropolitan Transportation Authority, Defendant. (2024)

Order, Supreme Court, New York County (James G. Clynes, J.), entered June 15, 2023, which, to the extent appealed from as limited by the briefs, denied the motion of defendants Triborough Bridge and Tunnel Authority (TBTA) and MTA Bridges and Tunnels (collectively defendants) for summary judgment dismissing the claim regarding the placement of the tubular lane markers as against them, unanimously affirmed, without costs.

Plaintiff was injured when his motorcycle struck a tubular lane marker (also called a delineator) while changing lanes on the Bronx–Whitestone Bridge.  Plaintiff alleges that defendants negligently installed tubular lane markers immediately after the end of the dashed white line, at the beginning of the solid white line, to prevent lane changes without warning to vehicle operators, which constituted a dangerous condition in the roadway that caused his collision.

The court properly denied defendants’ motion for summary judgment dismissing plaintiff's claim regarding the placement of the tubular markers.  Defendants failed to establish that they were not negligent in connection with where the markers were placed (see generally Friedman v. State of New York, 67 N.Y.2d 271, 283, 502 N.Y.S.2d 669, 493 N.E.2d 893 [1986]).  They did not establish that they complied with the Manual of Uniform Traffic Control Devices by using engineering judgment in the placement of the tubular markers.  TBTA's regional director of bridges east, who was not an engineer, failed to testify that the decision to install the tubular markers was made by an engineer or in consultation with the engineering department.  She testified only that the engineering department was part of her team.  She also did not testify that the engineering department's design of the roadway included tubular markers, or that any engineers were involved with studies regarding the placement of the markers.  Those studies to which she alluded were not, in any event, formal written studies (compare Driscoll v. State of New York, 160 A.D.3d 1240, 1243, 74 N.Y.S.3d 675 [3d Dept. 2018]).

Defendants failed to establish that they were entitled to qualified immunity in that they failed to demonstrate that a “ ‘study, inquiry or investigation’ into that question was conducted and reached the determination now relied upon” (Leon v. New York City Tr. Auth., 96 A.D.3d 554, 555, 947 N.Y.S.2d 33 [1st Dept. 2012] [internal quotation marks omitted]).  “A mere informal review or internal policy will not suffice” (id.).  Even if a governmental body conducts a traffic study, it “may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan” (Friedman, 67 N.Y.2d at 284, 502 N.Y.S.2d 669, 493 N.E.2d 893).  Here, the TBTA's director did not testify that any study, inquiry, or investigation was conducted into the risk posed by placing the tubular markers at the beginning of the solid line after it changed from a dashed line (see Leon, 96 A.D.3d at 555, 947 N.Y.S.2d 33;  see also Jackson v. New York City Tr. Auth., 30 A.D.3d 289, 290, 818 N.Y.S.2d 32 [1st Dept. 2006]).

We have considered defendants’ remaining contentions and find them unavailing.