                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: July 23, 2015                       520198
________________________________

MATTHEW EVANS,
                      Appellant,
     v                                        MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Respondent.
________________________________


Calendar Date:   June 5, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

                               __________


      Tuttle Law Firm, Latham (James B. Tuttle of counsel), for
appellant.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Arnold of counsel), for respondent.

                               __________


Lynch, J.

      Appeal from a judgment of the Court of Claims (Hard, J.),
entered February 28, 2014, upon a decision of the court following
a bifurcated trial in favor of defendant on the issue of
liability.

      Claimant, who was a Warren County Deputy Sheriff, was
injured on May 16, 2009 while responding to a call at
approximately 3:00 a.m. on State Route 8 in the Town of Horicon,
Warren County. It is not disputed that it had been raining
steadily throughout the evening. Claimant alleged that the
roadway washed out, creating a sinkhole that caused his car to
bottom out, launch into the air and land with such force that he
injured his back. Following a nonjury trial on the issue of
liability, the Court of Claims made certain factual findings and
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dismissed the claim, finding that defendant was entitled to
qualified immunity. Judgment was entered upon the court's
decision and claimant now appeals.

      Municipalities unquestionably have a duty to maintain roads
in a reasonably safe condition (see Friedman v State of New York,
67 NY2d 271, 283 [1986]). With respect to highway safety and
design, however, defendant is "accorded a qualified immunity from
liability arising out of a highway planning decision" (id. at
283; see Graff v State of New York, 126 AD3d 1081, 1083 [2015];
Winney v County of Saratoga, 8 AD3d 944, 945 [2004]). Here, the
gravamen of the claim is that the 9-foot-high, 15-foot-wide oval
culvert that carried the Spuytenduiveil Creek underneath Route 8
was too small and should have been replaced. Plaintiff maintains
that this condition presented a maintenance and repair issue that
defendant was required to address in its proprietary capacity for
which basic negligence and not sovereign immunity principles
apply (see Wittorf v City of New York, 23 NY3d 473, 479 [2014]).
We disagree.

      Generally, when reviewing nonjury verdicts by the Court of
Claims, we have "broad authority to independently review the
probative weight of the evidence," but we should defer to the
court's credibility determinations and factual findings (Ball v
State of New York, 106 AD3d 1248, 1249 [2013] [internal quotation
marks and citations omitted]). Here, the evidence at trial
established that the culvert was installed in approximately 1969
in accordance with the design standard that required culverts to
be built to withstand a "50 year storm," meaning the worst storm
on record in the past 50 years. Defendant's engineers inspected
the culvert periodically, beginning in at least 1994 in
accordance with an established culvert inspection program. After
these inspections, the culvert was assigned satisfactory ratings
until 2008, when defendant's engineers determined to assign it
the lowest possible rating that a functioning culvert could
receive.

      It is not disputed that, despite the satisfactory ratings,
the road around the culvert on Route 8 washed out at least four
times before 2006. Testimony by defendant's engineers confirmed
that each time the road and fill washed away, the culvert
                              -3-                520198

remained structurally intact. When the road washed out in 2004,
defendant's engineers went to the scene and determined to repair
the road, but not to replace or redesign the culvert. The
completed repairs were significant and involved not only
rebuilding and repaving the road, but also fortifying the
embankments around the culvert. Similarly, after the 2006
washout, a Department of Transportation (hereinafter DOT)
engineer requested an emergency road repair contract and, at the
same time, also recommended that the culvert, which was described
as undersized, be placed on the "program for replacement."
Testimony by the DOT engineer confirmed that the culvert was, in
fact, placed on the list in accordance with this recommendation.
DOT's regional director, Thomas Werner, testified that the
replacement of the culvert would require a "new analysis"
incorporating current design standards and qualified as a capital
project addressed in a separate capital program. He explained
that the capital program replacement list was a compilation of
"all of the [highway] needs in the region" that "would be looked
at in terms of . . . all of the bridge needs, highway needs,
[and] the available money . . . [to determine] whether or not
[something] should . . . be replaced." He further explained that
the list was discussed monthly with a committee of engineers, and
requests were prioritized against the available budget. While he
could not recall specifics with regard to the culvert, he
recalled that there were hundreds of culverts in the region, and
that there were "dozens, if not hundreds[,] of these situations
going on all the time in the region" with "dozens of requests
going on at any particular time." He recalled that, in general,
once a repair request was granted, it would be scheduled for
completion within five to seven years. Werner confirmed that the
Route 8 culvert was replaced in 2010.

      In order to successfully invoke the qualified immunity
defense, defendant had the burden of demonstrating that its
decision with regard to the replacement of the culvert "'was the
product of a deliberative decision-making process'" (Matter of
Estate of Hamzavi v State of New York, 43 AD3d 1430, 1431 [2007],
quoting Appelbaum v County of Sullivan, 222 AD2d 987, 989
[1995]). Even with design planning issues, liability may exist
where the municipality does not adequately analyze the condition
or if there is no reasonable basis for its plan (see Friedman v
                              -4-                520198

State of New York, 67 NY2d at 284; Winney v County of Saratoga, 8
AD3d at 945). If a remedial plan is developed, "liability may
result from a failure to effectuate the plan within a reasonable
period of time," but "a reasonable delay justified by design
considerations [or] a legitimate claim of funding priorities
would not be actionable" (Friedman v State of New York, 67 NY2d
at 286-287; see Graff v State of New York, 126 AD3d at 1083).

      Based upon our review of the probative evidence, we agree
with the Court of Claims that the replacement of the culvert
presented a design and not a maintenance issue and that defendant
was entitled to qualified immunity. While Werner could not
specifically recall defendant's plan for the Route 8 culvert, the
evidence was clear that, when faced with road damage, defendant's
engineers determined that the appropriate plan was to first
repair and reopen the road. In 2006, the plan to replace the
culvert was included on the list of capital projects for
consideration. In addressing this response, we may neither
substitute our judgment for that exercised by defendant's expert
engineers, nor can we view their determinations with the benefit
of hindsight (see Friedman v State of New York, 67 NY2d at 286).
In our view, the evidence supports the Court of Claims'
assessment that the timing of the replacement was due to
legitimate funding priorities and, thus, the delay in ultimately
replacing the culvert was not unreasonable. Accordingly, we find
that, because defendant's plan was deliberative and adequate, the
Court of Claims properly dismissed the claim based on defendant's
qualified immunity (see Smythe v Woods, 41 AD3d 1130, 1131-1132
[2007]).

     McCarthy, J.P., Egan Jr. and Devine, JJ., concur.
                        -5-                  520198

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
