|Claimant(s):||MICHAEL BAMMANN, Individually and as Administrator of the Estate of Lynn Bammann, Deceased|
|Claimant short name:||BAMMANN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Greenberg & Greenberg
By: Mark D. Greenberg, Esq.
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Thomas J. Reilly, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 26, 2021|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212.
On August 11, 2018, claimant's decedent, Lynn Bammann, was operating a 2012 Honda motor vehicle eastbound on I-90 near Exit 9 in the Town of East Greenbush, State of New York when another eastbound vehicle changed lanes striking the decedent's vehicle, causing her to cross over the center median into the westbound lane where she collided with a third vehicle. Claimant seeks damages for wrongful death and the conscious pain and suffering of the decedent. Claimant alleges the defendant was negligent in failing to properly design the highway and the center median in the area where the accident occurred.
In support of its motion, defendant contends that it is immune from liability for its highway planning decisions, that it lacked notice of a highway defect and, in any event, the conduct of the State was not a proximate cause of the accident.
The Court of appeals re-stated the familiar procedural principles applicable to motions for summary judgment in Vega v Restani Constr. Corp.(18 NY3d 499, 503 ):
"On a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party' (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 ). Summary judgment is a drastic remedy, to be granted only where the moving party has 'tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact' (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ) and then only if, upon the moving party's meeting of this burden, the non-moving party fails 'to establish the existence of material issues of fact which require a trial of the action' (id.). The moving party's '[f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers' "(id. [emphasis added]).
Highway planning, design and maintenance are proprietary functions arising from the State or a municipality's duty to keep its roads in a reasonably safe condition (see Turturro v City of New York, 28 NY3d 469, 479 ). In such cases, the State is afforded qualified immunity "where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury" (Weiss v Fote, 7 NY2d 579, 588 , rearg denied 8 NY2d 934 ). Where a traffic study or plan has been performed, liability may only be imposed where the study is inadequate, there was no reasonable basis for the traffic plan or there was an unjustifiable delay in implementing the traffic plan (Friedman v State of New York, 67 NY2d 271, 284-286 ).
Defendant contends that the highway where this accident occurred was designed and constructed in accordance with the applicable standards as they existed on the date this section of the highway last underwent a significant reconstruction. In support of this contention, defendant submits an affidavit of Michael Cukrovany, Acting Regional Design Engineer for the New York State Department of Transportation (DOT) (defendant's Exhibit E), in which he states, based upon a review of pertinent documents, including the record plans for the highway (defendant's Exhibit H) and the NYSDOT Highway Design Manual Revision 22 (defendant's Exhibit J), that the applicable design standard did not warrant a guide rail at this location. Specifically, Mr. Cukrovany states that I-90 was constructed in 1969 and most recently underwent a significant reconstruction in 1999 (defendant's Exhibit E, Cukrovany affidavit, ¶ ¶ 10, 11). According to Mr. Cukrovany, the applicable design standard in 1999, set forth in Chapter 10 of the DOT Highway Design Manual, warranted constructing guide rails along freeways such as I-90 when the annual average daily traffic exceeds 20,000 vehicles per day and the median width is less than 11 meters (approximately 36 feet) (id. at ¶ 11). In addition, the design manual indicates that guide rails are unwarranted for median widths of 13.5 meters (approximately 44 feet) or more (id.). Mr. Cukrovany states further, based upon his personal review of the records, that at the time of this accident in August 2018, the average daily traffic in the area of I-90 where this accident occurred was 42,239 vehicles per day and the median width is approximately 14 meters (id. at ¶ 12). Accordingly, Mr. Cukrovany states "with a reasonable degree of engineering certainty that the section of I-90 at issue in this case . . . did not warrant the installation of median barrier at this location under the last significant roadway project and the decision not to erect guide rails at this location was proper and supported by the applicable roadway design specifications" (id. at ¶ 15). Based on the forgoing, defendant demonstrated that DOT's decision not to install a guide rail in the center median complied with the applicable standard, thereby providing a reasonable basis for its highway planning decision. Defendant therefore demonstrated its immunity from liability in this case and its prima facie entitlement to summary judgment.
By letter dated April 16, 2021, claimant's counsel advised that "[c]laimant will not be opposing [d]efendant's motion for summary judgment" (correspondence from Mark D. Greenburg, Esq., dated April 16, 2021).Based on the foregoing, defendant's motion is granted, and the claim is dismissed.
May 26, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims