Gunn v. Good Luck Truck Rental, Inc.

Judgment, Supreme Court, New York County (Shorter, J.), entered July 1, 1980, in favor of plaintiff Lawrence Gunn against defendant-appellant City of New York for $700,000, plus interest and costs, is unanimously reversed, on the law, without costs, and 568 the complaint is dismissed as against the City of New York. The accident here involved occurred on the Long Island Expressway on a section of it in Queens also known as the Queens-Midtown Expressway. Title to the Long Island Expressway resides in the State. (L 1971, ch 617, § 3.) The State constructed the expressway after approving the designs therefor. Design and construction of the expressway were State functions. (Highway Law, § 349-c, subds 1, 3.4.) Responsibility of the city was for maintenance. (Highway Law, § 349-c, subd 3.4.) And the testimony establishes that the city in practice confined itself to the maintenance function. The claim here is that although the expressway when constructed was safely and properly designed and constructed as of that time, without median dividers in the area of the accident, the enormous increase in traffic as well as changes in safety standards required that median dividers be provided in this area. Passing the question of whether such developments and changing standards imposed a duty to install median dividers on existing roads (cf. Kaufman v State of New York, 27 AD2d 587,588; Hagen v State of New York, 53 AD2d 802), the provision of such median dividers would be a change in design and construction and not a maintenance function, and thus, failure to provide such median dividers was not a breach of the city’s duty. Concur — Sullivan, J. P., Ross, Lupiano and Silverman, JJ.