WHITAKER v. KENNEDY TOWN OF POLAND (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the amended order so appealed from is unanimously modified on the law by granting in part the motion of defendants Kennedy/Town of Poland and Town of Poland Highway Department and dismissing the complaint against them except to the extent that the complaint, as amplified by the bill of particulars, alleges that they were negligent in failing to install guiderails at the relevant intersection, and as modified the amended order is affirmed without costs.

Memorandum:  Plaintiff commenced this action as plenary guardian of Joseph L. Martin, Jr., an incapacitated person, seeking damages for injuries sustained by Martin in a single-vehicle accident at the intersection of Hartman Road and Stone Road in the Town of Poland.  Martin was a passenger in the vehicle, which failed to stop at the intersection, continued across the street, went down an embankment, struck a tree, and came to rest in a creek.

Supreme Court properly denied that part of the motion of Kennedy/Town of Poland and Town of Poland Highway Department (defendants) for summary judgment dismissing the complaint against them insofar as the complaint, as amplified by the bill of particulars, alleged that defendants were negligent in failing to install guiderails at the intersection.  “A municipality has a duty to maintain its roads in a reasonably safe condition ‘in order to guard against contemplated and foreseeable risks to motorists,’ including risks related to a driver's negligence or misconduct” (Stiggins v. Town of N. Dansville, 155 A.D.3d 1617, 1618, 63 N.Y.S.3d 796 [4th Dept. 2017] ).  Defendants submitted evidence in support of their motion tending to establish that they had notice of prior similar accidents at the intersection, which created an issue of fact whether they were negligent in failing to provide adequate protection against a known dangerous condition by installing guiderails (see Gillooly v. County of Onondaga, 168 A.D.2d 921, 922, 564 N.Y.S.2d 889 [4th Dept. 1990];  Posman v. State of New York, 117 A.D.2d 915, 917, 498 N.Y.S.2d 917 [3d Dept. 1986];  see also Popolizio v. County of Schenectady, 62 A.D.3d 1181, 1182–1183, 879 N.Y.S.2d 616 [3d Dept. 2009] ).

We agree with defendants, however, that the court erred in denying that part of their motion for summary judgment dismissing the complaint to the extent that the complaint, as amplified by the bill of particulars, alleges other theories of defendants' negligence.  Defendants met their initial burden with respect to those other theories, and plaintiff either did not oppose those portions of the motion, thus implicitly conceding defendants' entitlement to summary judgment on those grounds (see Hagenbuch v. Victoria Woods HOA, Inc., 125 A.D.3d 1520, 1521, 4 N.Y.S.3d 439 [4th Dept. 2015] ), or failed to raise an issue of fact precluding summary judgment (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).  We therefore modify the amended order accordingly.