Opinion
June 5, 1992
Appeal from the Supreme Court, Niagara County, Joslin, J.
Present — Denman, P.J., Boomer, Pine, Balio and Boehm, JJ.
Order unanimously affirmed without costs. Memorandum: While operating his automobile on Upper Mountain Road in the Town of Lockport during a heavy rainstorm, plaintiff lost control of his automobile. Allegedly, he came into contact with "a lot of water" running down one side of the highway pavement, causing his vehicle to go off the roadway and strike a tree. Plaintiff alleges, inter alia, that the County failed to design, construct and maintain Upper Mountain Road safely so that water from the roadway would drain into its storm sewers and that it failed to provide proper pavement markings and signs.
The court properly granted summary judgment to defendant. Although municipalities owe an "absolute duty of keeping [their] streets in a reasonably safe condition" (Annino v. City of Utica, 276 N.Y. 192, 196; see also, Lopes v. Rostad, 45 N.Y.2d 617), they are afforded qualified immunity from liability for highway planning decisions (Friedman v. State of New York, 67 N.Y.2d 271). Thus, municipalities may not be held liable "absent some indication that due care was not exercised in the preparation of the design or that no reasonable official could have adopted it" (Weiss v. Fote, 7 N.Y.2d 579, 586; see also, Alexander v. Eldred, 63 N.Y.2d 460).
Here, defendant presented proof that, when the road was reconstructed in 1973, its grade was in accordance with applicable standards and appropriate signs were installed in accordance with the uniform traffic control manual. Catch basins and drainage pipes were also installed. Plaintiff's contention that defective design is demonstrated by the lack of a catch basin in the area of the accident is supported only by the affidavit of his attorney. That is insufficient in the absence of an affidavit from an expert (see, Demesmin v. Town of Islip, 147 A.D.2d 519, 522). Nor has plaintiff submitted expert opinion to demonstrate that traffic or engineering studies were needed for the reconstruction, or to refute defendant's proof that the road was reconstructed and marked in accordance with the standards in existence at the time. Thus, plaintiff has not shown that the reconstruction plan evolved without adequate study, or that it lacked a reasonable basis (see, Rooney v. State of New York, 111 A.D.2d 159, 161).
Plaintiff has not shown that defendant failed adequately to maintain the road. Liability may be imposed upon a municipality for injuries caused by standing water on its roads, but not without proof of actual or constructive knowledge of the condition (see, Kelly v. Town of Islip, 141 A.D.2d 611, 612, lv dismissed 73 N.Y.2d 865; Torrey v. State of New York, 266 App. Div. 900; Nelson v. State of New York, 105 Misc.2d 107). It is undisputed that defendant had no notice of a water drainage problem before the accident. That is supported by plaintiff's deposition testimony that he drove on the road daily for seven or eight years and never experienced a water problem. There is, therefore, no evidence of a recurrent condition requiring either corrective action or the posting of signs (cf., Rooney v. State of New York, 111 A.D.2d 159, supra).