Affleck v. Buckley

In two related actions, inter alia, to recover damages for wrongful death and personal injuries, the County of Nassau, the defendant in Action No. 2, appeals from so much of an order of the Supreme Court, Nassau County (DiNoto, J.), dated January 26, 1999, as denied its motion for summary judgment dismissing the complaint in that action. Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint in Action No. 2 is dismissed. The present actions arise from an automobile accident that occurred on September 11, 1994, at the entrance to the Wald-' baum’s Shopping Center (hereinafter Waldbaum’s) on West-bury Avenue in Carle Place. The decedent Harold R. Affleck was driving a vehicle in which his wife, the decedent Harriet Affleck, was a passenger, west on Westbury Avenue, a two-lane thoroughfare, when he attempted to make a left turn into the Waldbaum’s driveway against oncoming traffic. His car collided with a vehicle operated by Gerald M. Buckley, Jr., a de-. fendant in Action No. 1, which was traveling eastbound on Westbury Avenue. The Affleck vehicle then collided with a vehicle operated by Joan Walker, a defendant in Action No. 1, which was stopped in the driveway of Waldbaum’s, waiting to exit. Sometime before the accident, Waldbaum’s had hired a private consultant, PSC Engineering, to survey the subject driveway as a result of patrons’ complaints that “exiting onto Westbury Avenue was very difficult”. The consultant, observ [508] ing that sightlines were obscured primarily by trees within the buffer strip between the curb and the sidewalk recommended that a traffic light be installed. The defendant County of Nassau (hereinafter the County) conducted its own investigation and determined that a traffic signal was not warranted but that sight visibility needed to be improved for vehicles exiting the Waldbaum’s parking lot by removing several trees and a fence. The County also installed additional traffic signs to warn motorists about the parking lot entrance. The plaintiff now claims that the County’s failure to install a traffic signal was a proximate cause of the decedents’ accident. The Supreme Court denied the County’s motion for summary judgment. We reverse. A governmental body owes a nondelegable duty to keep its streets in a reasonably safe condition (see, Friedman v State of New York, 67 NY2d 271). However, a governmental body is accorded a qualified immunity from liability arising out of a highway safety planning decision (see, Friedman v State of New York, supra; Alexander v Eldred, 63 NY2d 460), unless its study of a traffic condition is plainly inadequate, or there is no reasonable basis for its traffic plan (see, Friedman v State of New York, supra; Alexander v Eldred, supra; Schuster v McDonald, 263 AD2d 473). In support of its motion, the County submitted an affidavit by the assistant to the Deputy Commissioner for Traffic Engineering of the County of Nassau, stating that the County had studied the area in question for almost a year in response to citizen complaints, had conducted visits and performed traffic counts in response to the report of PSC Engineering, and had evaluated accident reports for the general area in making its determination not to install a traffic signal. In addition, the County submitted evidence that before the accident it had completed measures to improve the safety of the driveway area within its control, which was sufficient to demonstrate its prima facie entitlement to judgment as a matter of law pursuant to the doctrine of qualified immunity (see, Schuster v McDonald, supra; Redcross v State of New York, 241 AD2d 787). In opposition to the motion, the evidence proffered by the plaintiff was insufficient to raise a triable issue of fact as to the reasonableness of the County’s determination or the inadequacy of its investigation (see, Schuster v McDonald, supra). The opinion expressed in the report of PSC Engineering that a traffic signal should be installed is insufficient to overcome the qualified immunity, as “something more than a mere choice between conflicting opinions of experts is required before the [509] State or one of its subdivisions may be charged with failure to discharge its duty to plan the highways for the safety of the traveling public” (Weiss v Fote, 7 NY2d 579, 588; see also, Abrahams v Town of Brookhaven, 220 AD2d 472). It is noted that Waldbaum’s private consultant recommended the installation of a traffic signal to control egress from the shopping center parking lot. It appears that such a recommendation, even if followed, would not have prevented the instant accident. Under the circumstances of this case, where the decedents’ vehicle was turning into the shopping center driveway against oncoming eastbound traffic, there is no evidence that the County’s ascribed negligence in failing to install a traffic signal contributed to the happening of this accident (see, Redcross v State of New York, supra). O’Brien, J. P., McGinity and Feuerstein, JJ., concur.