AMATO v. COUNTY OF ERIE

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Supreme Court, Appellate Division, Fourth Department, New York.

Pascal J. AMATO and Rosemarie Amato, Individually and as Guardian of the Person and Property of Maria Elizabeth Amato, an Infant, Respondents, v. COUNTY OF ERIE, County of Erie Department of Public Works, Town of Grand Island, Appellants, et al., Defendant.

Jack WEST, Individually and as Executor of the Estate of Velma West, Deceased, Respondent, v. COUNTY OF ERIE, Town of Grand Island, Appellants,

Pascal J. Amato, Respondent. Lois D. KELLY, Individually and as Executrix of the Estate of Alwin J. Steinke, Deceased, Respondent, v. Pascal J. AMATO, Jack West, as Administrator of the Estate of Velma West, Deceased, Respondents,

County of Erie and Town of Grand Island, Appellants. Marie AMATO and Anthony Amato, Respondents, v. COUNTY OF ERIE, Town of Grand Island, Appellants, Lois D. Kelly, as Executrix of the Last Will and Testament of Alwin J. Steinke, Deceased, and Representative of the Estate of Alwin J. Steinke, Deceased, Pascal J. Amato and Jack West, As Executor of the Last Will and Testament of Velma West, Deceased, and Representative of the Estate of Velma West, Deceased, Respondents.

Decided: February 04, 1998

Before DENMAN, P.J., and GREEN, PINE, BALIO and FALLON, JJ. Erie County Attorney's Office, Kenneth Schoetz by Alisa Lukasiemcz, Buffalo, for Defendant-Appellant County of Erie. Smith, Murphy, Schoepperle by Dennis Mascall, Buffalo, for Plaintiff-Appellant Town of Grand Island. Paul William Beltz, P.C. by Craig Watson, Buffalo, for Plaintiff-Respondent West. Randy H. Gugino, Amherst, Millane and Associates by Paul Caputo, Williamsville, for Plaintiffs-Respondents Amato. Flaherty and Shea by James Shea, Buffalo, for Plaintiff-Respondent Kelly.

These consolidated actions for wrongful death or personal injury arise out of a two-car collision that occurred at the intersection of Staley and Baseline Roads in the Town of Grand Island (Town).   In each action, plaintiff sued the Town as the owner of Staley Road and the County of Erie (County) as the owner of Baseline Road, in addition to suing the owner and/or driver of one or both vehicles.   The County and Town appeal from so much of an order as denied their motions for summary judgment dismissing plaintiffs' complaints, which allege that the municipalities' control of traffic at the intersection was not based on a timely and adequate study and rendered the intersection unreasonably dangerous.   Plaintiffs allege that the municipalities were negligent in failing to install a traffic light or four-way stop signs in place of the two-way stop signs at the intersection at the time of the accident.   The municipalities contend that they should have been granted summary judgment because they are entitled to qualified immunity for their traffic engineering decisions and because, under the circumstances, the failure to upgrade the traffic control devices at the intersection was not a proximate cause of the accident.

 We conclude that there is a triable issue of fact whether traffic control at the intersection evolved without an adequate and timely study (see, Scheemaker v. State of New York, 70 N.Y.2d 985, 986, 526 N.Y.S.2d 420, 521 N.E.2d 427;  Burgess v. Town of Hempstead, 161 A.D.2d 616, 617, 555 N.Y.S.2d 396;  see generally, Weiss v. Fote, 7 N.Y.2d 579, 585-588, 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).   The County, which the record shows was solely responsible for traffic control at the intersection, failed to establish its defense of qualified immunity as a matter of law.   The record affords no basis for concluding that the County's study adequately took into account the history of numerous accidents at the intersection, nor does it show that the study could not, in the exercise of reasonable care, have been completed before the date of the accident.

 We further conclude that there is a triable issue of fact concerning whether the County's failure to upgrade the traffic control devices caused or contributed to the occurrence of the accident.   This is a case in which, arguably, the County's alleged negligence was not totally independent of the accident (see, Alexander v. Eldred, 63 N.Y.2d 460, 468, 483 N.Y.S.2d 168, 472 N.E.2d 996).   Thus, the issue is properly one for the trier of fact (see, Alexander v. Eldred, supra, at 468, 483 N.Y.S.2d 168, 472 N.E.2d 996;  cf., Woodcock v. County of Niagara, 52 A.D.2d 1087, 384 N.Y.S.2d 310).

 We modify the order, however, by granting the motion of the Town for summary judgment dismissing the complaints against it.   Counties are responsible for traffic control at intersections of county and town roads (see, Vehicle and Traffic Law § 1651;  Foehner v. Bauer, 126 A.D.2d 941, 511 N.Y.S.2d 987;  cf., Ossmer v. Bates, 97 A.D.2d 871, 872, 469 N.Y.S.2d 273).   The record establishes, as a matter of law, that the traffic study was undertaken by the County alone pursuant to its responsibility, and that the Town's responsibility was limited to implementing whatever decision was made by County officials.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: