Cause of Action Based Upon Limited Sight Condition (Line of Sight Blocked by Tree) Should Have Been Dismissed—No Written Notice of the Condition/Cause of Action Based Upon Allegations the Town Created the Dangerous Intersection by the Painting of Roadway Lines and the Absence of a Traffic Control Device Not Subject to the Written Notice Requirement/Because There Was No Study of the Intersection, the Town Could Not Demonstrate Its Entitlement to Qualified Immunity

The plaintiff was injured in a motor vehicle accident at an intersection.  The plaintiff sued the town alleging that an evergreen tree created a limited sight condition, and further alleging the painting of roadway lines and the absence of a traffic control device created a dangerous condition.  The Second Department determined the “limited sight condition” cause of action against the town should have been dismissed because there was no showing the town had written notice of the problem.  The cause of action based upon the roadway lines and the absence of a traffic control device properly survived dismissal because the written notice requirement does not apply to dangerous conditions alleged to have been created by the municipality.  The court further held that the town’s “qualified immunity” defense was not demonstrated because there was no showing the town relied upon the results of a study addressing the conditions at the intersection… :

Supreme Court properly denied that branch of the Town’s motion which was pursuant to CPLR 3211(a) to dismiss so much of the complaint as alleged that the Town negligently created a dangerous condition by painting certain street lines and by failing to install appropriate traffic control devices at the subject intersection. The prior written notice provision of the Town Code does not apply to a claim that a municipality allegedly created a defect or hazard through an affirmative act of negligence …, such as the Town’s allegedly negligent act of painting certain street lines, or to a claim that the municipality failed to provide appropriate traffic control devices at an intersection … .

The Town also failed to establish its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it negligently created a dangerous condition by painting certain street lines and by failing to install appropriate traffic control devices at the subject intersection, based upon the defense of qualified immunity. “It has long been held that a municipality owe[s] to the public the absolute duty of keeping its streets in a reasonably safe condition. While this duty is nondelegable, it is measured by the courts with consideration given to the proper limits on intrusion into the municipality’s planning and decision-making functions. Thus, in the field of traffic design engineering, a municipality is accorded a qualified immunity from liability arising out of a highway planning decision” … . “However, the doctrine of qualified immunity will not apply where the municipality has not conducted a study which entertained and passed on the very same question of risk” … . Here, the evidence presented by the Town failed to establish that it undertook a study which entertained and passed on the question of risk that is at issue in this case … . Poveromo v Town of Cortlandt, 2015 NY Slip Op 02950, 2nd Dept 4-8-15