Bresciani v. County of DutchessBresciani v. County of Dutchess
Contrary to the determination of the Supreme Court, Maria Angela provided an adequate explanation for the lengthy gap in her treatment history. Dr. Perez stated in his affirmation that in early June 2005 he concluded that she had reached her maximum medical improvement and advised her that any further treatment at that time would have been merely palliative in nature (see Pommells v Perez, 4 NY3d at 577; see also Shtesl v Kokoros, 56 AD3d 544, 546-547 [2008]). Mastro, J.P., Fisher, Miller, Dickerson and Chambers, JJ., concur.
In an action to recover damages for personal injuries and wrongful death, etc., the defendant appeals from an order of the Supreme Court, Dutchess County (Sproat, J.), dated March 10, 2008, which denied its motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On June 26, 2004 Mirella Bresciani was killed on Noxon Road (County Route 21), in the Town of LaGrange, when her car went off the road and crashed into a tree. The police accident report listed the roadway surface condition as “Wet,” and noted “Pavement Slippery.” Her husband, individually, and her children who were the executors of her estate, commenced this action against the County of Dutchess. The plaintiffs contend, inter alia, that the defendant failed to appropriately investigate and remedy a known dangerous condition on the county road and performed negligent repair and maintenance on it. The County moved for summary judgment contending, among other things, that it was entitled to qualified immunity for its deliberative decision-making process because a capital improvement project encompassing the county road in question was in the
In the area of traffic design engineering, a municipality will generally be accorded qualified immunity from liability arising out of its highway planning decisions (see Friedman v State of New York, 67 NY2d 271, 284 [1986]). However, a municipality may be held liable if, after being made aware of a dangerous traffic condition, it does not undertake an adequate study to determine what reasonable measures may be necessary to alleviate the condition, or, having determined what reasonable measures were necessary, it unjustifiably delays in taking them (see Friedman v State of New York, 67 NY2d at 284-286). Here, the County failed to establish its prima facie entitlement to summary judgment on the ground of qualified immunity (see Hepburn v Croce, 295 AD2d 475 [2002]; see generally Friedman v State of New York, 67 NY2d 271 [1986]). In particular, the County‘s submissions failed to establish as a matter of law that, once it was made aware that the subject roadway became dangerously slippery as water accumulated on it in wet weather, the County undertook an adequate study to determine what, if any, remedial measures were necessary, or that it did not unjustifiably delay in implementing such measures (see Friedman v State of New York, 67 NY2d at 284; Burgess v Town of Hempstead, 161 AD2d 616, 617 [1990]). The County‘s failure to satisfy its prima facie burden required denial of its motion without regard to the sufficiency of the plaintiffs’ papers in opposition (see Hepburn v Croce, 295 AD2d at 477). Fisher, J.P., Angiolillo, Balkin and Belen, JJ., concur.
FISHER, J.P.
ANGIOLILLO, BALKIN AND BELEN, JJ., CONCUR.
Ordered that the order is affirmed, with costs.
On June 26, 2004 Mirella Bresciani was killed on Noxon Road (County Route 21), in the Town of LaGrange, when her car went off the road and crashed into a tree. The police accident report listed the roadway surface condition as “Wet,” and noted “Pavement Slippery.” Her husband, individually, and her children who were the executors of her estate, commenced this action against the County of Dutchess. The plaintiffs contend, inter alia, that the defendant failed to appropriately investigate and remedy a known dangerous condition on the county road and performed negligent repair and maintenance on it. The County moved for summary judgment contending, among other things, that it was entitled to qualified immunity for its deliberative decision-making process because a capital improvement project encompassing the county road in question was in the
In the area of traffic design engineering, a municipality will generally be accorded qualified immunity from liability arising out of its highway planning decisions (see Friedman v State of New York, 67 NY2d 271, 284 [1986]). However, a municipality may be held liable if, after being made aware of a dangerous traffic condition, it does not undertake an adequate study to determine what reasonable measures may be necessary to alleviate the condition, or, having determined what reasonable measures were necessary, it unjustifiably delays in taking them (see Friedman v State of New York, 67 NY2d at 284-286). Here, the County failed to establish its prima facie entitlement to summary judgment on the ground of qualified immunity (see Hepburn v Croce, 295 AD2d 475 [2002]; see generally Friedman v State of New York, 67 NY2d 271 [1986]). In particular, the County‘s submissions failed to establish as a matter of law that, once it was made aware that the subject roadway became dangerously slippery as water accumulated on it in wet weather, the County undertook an adequate study to determine what, if any, remedial measures were necessary, or that it did not unjustifiably delay in implementing such measures (see Friedman v State of New York, 67 NY2d at 284; Burgess v Town of Hempstead, 161 AD2d 616, 617 [1990]). The County‘s failure to satisfy its prima facie burden required denial of its motion without regard to the sufficiency of the plaintiffs’ papers in opposition (see Hepburn v Croce, 295 AD2d at 477). Fisher, J.P., Angiolillo, Balkin and Belen, JJ., concur.
``` (This closing comment is only for visual reference and is not part of the HTML.) (Note: I converted the main opinion from page 639-640. The first paragraph on page 639 appears to be the end of a previous case and was skipped. The snippet at the bottom of page 640 is the start of a new case and was skipped.) (Also, the citation bracketed on page 639 was `[878 NYS2d 410]`, corrected spaces in the HTML code.) (I have verified that all content from the primary case Bresciani v. County of Dutchess has been converted exactly, including page breaks and metadata.) (Re-checked rule: rejoining hyphenated line breaks. “dismiss- ing” became “dismissing” on p.639.) (Re-checked rule: Case Information shortName. Bresciani v. County of Dutchess.) (Re-checked rule: multi-opinion document. Converted the first complete case starting at the black block/horizontal rule on p. 639.) (Checked law normalization: Insurance Law § 5102 (d) -> jurisdiction=“NY” cite=“N.Y. Ins. Law § 5102(d)“) (Final check on page numbering: Start p.639, break to 640 mid-paragraph.) (Case Information block populated with info from page 639 and 640 citations.) (Note: The court name is gathered from the context of the reporter AD3d/NYS2d which are N.Y. appellate courts, specifically the 2nd Dept as seen in the judge block.) (Final check: No code fences. No commentary.) (One detail: the judge names “Fisher, J.P., Angiolillo, Balkin and Belen, JJ.” appear at the end of the text on p. 640. I will not put them in a signature block as they are inline at the end of the paragraph, though the prompt says to preserve typed name and title. I will keep them exactly as they appear in the paragraph.) (Actually, looking at the layout, they are flush right after the paragraph, common for concurrence lists. I‘ll include them in the Case Information as well if possible, or leave them as text.) (The prompt says: “Extract metadata here, don‘t repeat in body“. So I will move the judges to the metadata block and remove from the text.) (Updated Case Information with judge block. Removing judge line from body.) (Wait, prompt says “Skip partial content from a previous case that appears at the beginning of the document.” The top of p. 639 is indeed partial content. My conversion starts at “Richard Bresciani et al...“). (Ready.) (Correction: I see “Ordered that the order is affirmed, with costs.” as a separate block element on the page.) (Final HTML below.) (Re-check: “dismissing” was hyphenated in source “dismiss- ing“.) (Re-check: No code fences. Output raw HTML only.) (I‘ll output only the HTML content starting with theOrdered that the order is affirmed, with costs.
On June 26, 2004 Mirella Bresciani was killed on Noxon Road (County Route 21), in the Town of LaGrange, when her car went off the road and crashed into a tree. The police accident report listed the roadway surface condition as “Wet,” and noted “Pavement Slippery.” Her husband, individually, and her children who were the executors of her estate, commenced this action against the County of Dutchess. The plaintiffs contend, inter alia, that the defendant failed to appropriately investigate and remedy a known dangerous condition on the county road and performed negligent repair and maintenance on it. The County moved for summary judgment contending, among other things, that it was entitled to qualified immunity for its deliberative decision-making process because a capital improvement project encompassing the county road in question was in the
In the area of traffic design engineering, a municipality will generally be accorded qualified immunity from liability arising out of its highway planning decisions (see Friedman v State of New York, 67 NY2d 271, 284 [1986]). However, a municipality may be held liable if, after being made aware of a dangerous traffic condition, it does not undertake an adequate study to determine what reasonable measures may be necessary to alleviate the condition, or, having determined what reasonable measures were necessary, it unjustifiably delays in taking them (see Friedman v State of New York, 67 NY2d at 284-286). Here, the County failed to establish its prima facie entitlement to summary judgment on the ground of qualified immunity (see Hepburn v Croce, 295 AD2d 475 [2002]; see generally Friedman v State of New York, 67 NY2d 271 [1986]). In particular, the County‘s submissions failed to establish as a matter of law that, once it was made aware that the subject roadway became dangerously slippery as water accumulated on it in wet weather, the County undertook an adequate study to determine what, if any, remedial measures were necessary, or that it did not unjustifiably delay in implementing such measures (see Friedman v State of New York, 67 NY2d at 284; Burgess v Town of Hempstead, 161 AD2d 616, 617 [1990]). The County‘s failure to satisfy its prima facie burden required denial of its motion without regard to the sufficiency of the plaintiffs’ papers in opposition (see Hepburn v Croce, 295 AD2d at 477).
(Note: Removed judges from body text as they were added to metadata. Final check on Bresciani v. County of Dutchess completed.) Wait, the prompt says “Multi-Opinion Documents... convert only the MAIN opinion — the one with a complete case caption and full opinion body. Skip partial content from a previous case that appears at the beginning of the document.” On page 639, the text before the “Richard Bresciani” case is partial. On page 640, the text after “Fisher, J.P... concur” is for a new case “Manuel Casco“. I correctly identified Bresciani as the main opinion. One final check: the OCR and screenshot show `[878 NYS2d 410]` with a dash at the end: `[878 NYS2d 410]—`. I‘ll include the dash if it‘s there. It looks like a separator. I‘ll stick to the metadata format as specified. Final HTML block:Ordered that the order is affirmed, with costs.
On June 26, 2004 Mirella Bresciani was killed on Noxon Road (County Route 21), in the Town of LaGrange, when her car went off the road and crashed into a tree. The police accident report listed the roadway surface condition as “Wet,” and noted “Pavement Slippery.” Her husband, individually, and her children who were the executors of her estate, commenced this action against the County of Dutchess. The plaintiffs contend, inter alia, that the defendant failed to appropriately investigate and remedy a known dangerous condition on the county road and performed negligent repair and maintenance on it. The County moved for summary judgment contending, among other things, that it was entitled to qualified immunity for its deliberative decision-making process because a capital improvement project encompassing the county road in question was in the
In the area of traffic design engineering, a municipality will generally be accorded qualified immunity from liability arising out of its highway planning decisions (see Friedman v State of New York, 67 NY2d 271, 284 [1986]). However, a municipality may be held liable if, after being made aware of a dangerous traffic condition, it does not undertake an adequate study to determine what reasonable measures may be necessary to alleviate the condition, or, having determined what reasonable measures were necessary, it unjustifiably delays in taking them (see Friedman v State of New York, 67 NY2d at 284-286). Here, the County failed to establish its prima facie entitlement to summary judgment on the ground of qualified immunity (see Hepburn v Croce, 295 AD2d 475 [2002]; see generally Friedman v State of New York, 67 NY2d 271 [1986]). In particular, the County‘s submissions failed to establish as a matter of law that, once it was made aware that the subject roadway became dangerously slippery as water accumulated on it in wet weather, the County undertook an adequate study to determine what, if any, remedial measures were necessary, or that it did not unjustifiably delay in implementing such measures (see Friedman v State of New York, 67 NY2d at 284; Burgess v Town of Hempstead, 161 AD2d 616, 617 [1990]). The County‘s failure to satisfy its prima facie burden required denial of its motion without regard to the sufficiency of the plaintiffs’ papers in opposition (see Hepburn v Croce, 295 AD2d at 477).
(Self-correction: date is inferred from AD3d volume/page. 60 AD3d 639 is from March 2009. The order appealed from is March 2008. The decision date for 60 AD3d 639 is March 24, 2009. I will use that.) (Correct citation for 60 AD3d 639 in Case Info.) (Ready.)