BACCHETTA v. TOWN OF GREECE (2006)

Plaintiff commenced this action seeking damages for injuries he sustained when the motorcycle he was operating skidded and veered off the road, causing him to be thrown from the motorcycle.   According to plaintiff, defendant was negligent in, inter alia, failing to provide a safe road for vehicular traffic and failing to provide adequate lighting and signage.   Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint.   In support of the motion, defendant submitted an affidavit in which one of its employees stated that, as a result of an extensive traffic study of the road at issue conducted in 1979, it was determined that only minor alterations were necessary.   In opposition to the motion, plaintiff submitted an affidavit in which his expert stated that, based on a test he performed, the posted speed limit was excessive and the signage violated the rules and regulations of the New York State Department of Transportation.   Even assuming, arguendo, that defendant met its initial burden by establishing that it undertook an adequate study and reached a reasonable decision (see Weiss v. Fote, 7 N.Y.2d 579, 585-586, 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;   Palloni v. Town of Attica, 278 A.D.2d 788, 789, 723 N.Y.S.2d 582, lv. denied 96 N.Y.2d 709, 725 N.Y.S.2d 639, 749 N.E.2d 208), we conclude that plaintiff raised an issue of fact whether defendant's “ decision evolved without adequate study or lacked a reasonable basis” (Zecca v. State of New York, 247 A.D.2d 776, 777, 669 N.Y.S.2d 413;  cf. D'Alfonso v. County of Oswego, 198 A.D.2d 802, 803, 603 N.Y.S.2d 934).

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

MEMORANDUM: