Poveromo v. Town of Cortlandt

In an action, inter alia, to recover damages for personal injuries, the defendant Town of Cortlandt appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated July 19, 2013, as denied its motion pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against it or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against it, and the defendants Daniel W. Dondero and Karol A. Dondero separately appeal, as limited by their brief, from so much of the same order as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Town of Cortlandt which was pursuant to CPLR 3211 (a) to dismiss so much of the complaint as alleged that it was liable for an allegedly dangerous limited sight condition created by an evergreen tree, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with one bill of costs to the plaintiffs payable by the defendants Daniel W. Dondero and Karol A. Dondero.

The plaintiff Peter Poveromo (hereinafter the injured plaintiff) allegedly was injured in a motorcycle accident that occurred at the intersection of Fairview Place and Waterbury Parkway in the defendant Town of Cortlandt. The injured plaintiff, and his wife suing derivatively, commenced this action against the Town and the defendants Daniel W. Dondero and Karol A. Dondero (hereinafter together the Donderos), who owned a parcel of property adjoining the subject intersection. The plaintiffs alleged that the Donderos were negligent in that they, among other things, in violation of a provision of the Town Code of the Town of Cortlandt (hereinafter the Town Code), allowed a large evergreen tree to remain on their prop

The Town moved pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against it, or alternatively, for summary judgment dismissing the complaint insofar as asserted against it. The Town argued, among other things, that it did not have prior written notice of the alleged dangerous conditions as required by the Town Code, that it was entitled to qualified immunity with regard to the road design and striping, and that it could not be held liable because the injured plaintiffs actions were the sole proximate cause of his injuries. The Donderos separately moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that they could not be held liable because the injured plaintiffs actions were the sole proximate cause of his injuries. The Supreme Court denied both motions. We modify.

The Supreme Court should have granted that branch of the Town’s motion which was pursuant to CPLR 3211 (a) to dismiss so much of the complaint as alleged that it was liable for the allegedly dangerous limited sight condition created by the evergreen tree on the Donderos’ property. As the Town correctly argues, any allegation that vegetation obstructed a driver’s view of the intersection and of traffic on the intersecting roadways is subject to its prior written notice statute (see Dutka v Odierno, 116 AD3d 823 [2014]; Dworkin v Ecolab, Inc., 283 AD2d 544 [2001]; Forsythe-Kane v Town of Yorktown, 249 AD2d 505 [1998]; Bounauito v Floyd School Dist., 203 AD2d 225 [1994]). Here, since the plaintiffs did not allege that the Town had prior written notice of any obstructed sight lines in and around the subject intersection, the Supreme Court should have granted that branch of the Town’s motion which was pursuant to CPLR 3211 (a) to dismiss so much of the complaint as alleged that it was liable based upon the evergreen tree (see Dutka v Odierno, 116 AD3d 823 , 824 [2014]).

However, the Supreme Court properly denied that branch of the Town’s motion which was pursuant to CPLR 3211 (a) to dismiss so much of the complaint as alleged that the Town negligently created a dangerous condition by painting certain street lines and by failing to install appropriate traffic control

The Town also failed to establish its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it negligently created a dangerous condition by painting certain street lines and by failing to install appropriate traffic control devices at the subject intersection, based upon the defense of qualified immunity. “It has long been held that a municipality owe[s] to the public the absolute duty of keeping its streets in a reasonably safe condition. While this duty is nondelegable, it is measured by the courts with consideration given to the proper limits on intrusion into the municipality’s planning and decision-making functions. Thus, in the field of traffic design engineering, a municipality is accorded a qualified immunity from liability arising out of a highway planning decision” (Kuhland v City of New York, 81 AD3d 786 , 787 [2011] [internal quotation marks and citation omitted]; see Mare v City of New York, 112 AD3d 793 [2013]; Bresciani v County of Dutchess, N.Y., 62 AD3d 639 , 640 [2009]; Scott v City of New York, 16 AD3d 485 [2005]; see generally Ernest v Red Cr. Cent. School Dist., 93 NY2d 664 [1999]). “However, the doctrine of qualified immunity will not apply where the municipality has not conducted a study which entertained and passed on the very same question of risk” (Kuhland v City of New York, 81 AD3d at 787 [internal quotation marks omitted]). Here, the evidence presented by the Town failed to establish that it undertook a study which entertained and passed on the question of risk that is at issue in this case (see Weiss v Fote, 7 NY2d 579 , 584 [1960]; Mare v City of New York, 112 AD3d 793 [2013]; Kuhland v City of New York, 81 AD3d 786 [2011]), or that the design of the intersection was reasonably safe (see Mare v City of New York, 112 AD3d 793 [2013]; Scott v City of New York, 16 AD3d 485 [2005]). Since the Town failed to satisfy its prima facie burden on this branch of its motion, it was properly denied, regardless of the sufficiency of the plaintiffs’ opposition papers (see Mare v City of New York, 112 AD3d at 794 ; Bresciani v County of Dutchess, 62 AD3d at 640 ).

Mastro, J.P., Dillon, Hall and Miller, JJ., concur.