Opinion
No. 459 CA 22-01640
06-30-2023
RICHARD BLANKE, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF KAREN J. BLANKE, DECEASED, CLAIMANT-APPELLANT, v. STATE OF NEW YORK, DEFENDANT-RESPONDENT. (CLAIM NO. 129285.)
BROWN CHIARI LLP, BUFFALO (TIMOTHY M. HUDSON OF COUNSEL), FOR CLAIMANT-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF COUNSEL), FOR DEFENDANT-RESPONDENT.
BROWN CHIARI LLP, BUFFALO (TIMOTHY M. HUDSON OF COUNSEL), FOR CLAIMANT-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, MONTOUR, AND OGDEN, JJ.
Appeal from an order of the Court of Claims (Debra A. Martin, J.), entered March 18, 2022. The order granted the motion of defendant for summary judgment and dismissed the claim.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Claimant, the husband of Karen J. Blanke (decedent), commenced this action, individually and as administrator of decedent's estate, seeking damages for her wrongful death resulting from a rear-end motor vehicle accident at the intersection of Route 63 and Chandler Road. The Court of Claims granted the motion of defendant, State of New York (State), for summary judgment dismissing the claim, and claimant appeals. We affirm.
Although a municipality owes an absolute duty to keep its highways in a reasonably safe condition (see Friedman v State of New York, 67 N.Y.2d 271, 283 [1986]; Weiss v Fote, 7 N.Y.2d 579, 584 [1960], rearg denied 8 N.Y.2d 934 [1960]), it is afforded qualified immunity from liability arising out of highway planning decisions (see Friedman, 67 N.Y.2d at 283; Weiss, 7 N.Y.2d at 584-586, 588). Thus, "liability for injury arising out of the operation of a duly executed highway safety plan may only be predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis" (Weiss, 7 N.Y.2d at 589; see Friedman, 67 N.Y.2d at 284; Kosoff-Boda v County of Wayne, 45 A.D.3d 1337, 1338 [4th Dept 2007]). Here, the State met its initial burden of establishing that the traffic plan it adopted was reasonable and based on adequate study, and plaintiff failed to raise an issue of fact with respect thereto (see Riddell v City of New York, 209 A.D.3d 891, 892 [2d Dept 2022]; see generally Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). The State presented evidence establishing that it repeatedly studied the accident rate and visibility issues at the subject intersection and made changes as necessary. In response, claimant submitted an expert affidavit that was speculative and unsupported by the record, and thus failed to raise a triable issue of fact (see Ginsberg v BJ' s Wholesale Club, Inc., 187 A.D.3d 1547, 1548 [4th Dept 2020]; Cannarozzo v County of Livingston, 13 A.D.3d 1180, 1181 [4th Dept 2004]). Claimant's additional submissions likewise failed to raise a triable issue of fact as to the State's adequate study of or reasonable basis for the highway plan (see Kosoff-Boda, 45 A.D.3d at 1338 ; Harford v City of New York, 194 A.D.2d 519, 520 [2d Dept 1993]).
In light of our determination, claimant's remaining contentions are academic.