        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1172
CA 15-00125
PRESENT: SCUDDER, P.J., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


LISA KELLEY AND KEITH FLEURY, AS PARENTS AND
NATURAL GUARDIANS OF KATLYN FLEURY, AN INFANT,
CLAIMANTS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 118050.)


HANCOCK ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR
CLAIMANTS-APPELLANTS.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Court of Claims (Nicholas V. Midey,
Jr., J.), entered April 2, 2014. The order granted in part
defendant’s motion for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Claimants commenced this action seeking damages for
injuries sustained by their 15-year-old daughter when the vehicle in
which she was a passenger collided with a minivan at an intersection
in the Town of Cicero. The intersection was controlled by a flashing
yellow signal for traffic on State Route 11 and a flashing red signal
for traffic on Mud Mill Road. Prior to the accident, in 1996, the New
York State Department of Transportation (DOT) determined that a
flashing light should be installed at the intersection. Thereafter,
in 1998, 2000, 2005, and 2007, the DOT determined that the flashing
signal was still appropriate and that a three-color signal was not
necessary. After a study in March 2009, however, the DOT determined
that a three-color signal was needed. Despite this approval, the
three-color signal was not installed prior to the subject accident,
which occurred on May 20, 2009.

     Claimants commenced this action alleging that defendant was
negligent in, inter alia, failing to conduct proper evaluations of
traffic patterns and failing to install appropriate and necessary
traffic control devices. Defendant moved for summary judgment
dismissing the claim based on its affirmative defense of qualified
immunity. The Court of Claims granted the motion in part, determining
that defendant was entitled to qualified immunity insofar as claimants
                                 -2-                          1172
                                                         CA 15-00125

alleged that defendant was negligent in its decision-making process.
The court denied the motion insofar as claimants alleged that the
safety plan developed by the DOT was not implemented in a timely
manner, determining that it was unable to conclude as a matter of law
that the delay in installing the three-color signal was “reasonable
and justified.” The sole issue before us on this appeal by claimants
is whether the court erred in granting that part of the motion with
respect to defendant’s decision-making process. We affirm.

     “Under [the] doctrine of qualified immunity, a governmental body
may be held liable when its study of a traffic condition is plainly
inadequate or there is no reasonable basis for its traffic plan”
(Friedman v State of New York, 67 NY2d 271, 284; see Weiss v Fote, 7
NY2d 579, 589, rearg denied 8 NY2d 934). Contrary to claimants’
contention, defendant met its initial burden by establishing that it
conducted a total of five traffic studies of the intersection before
the May 2009 accident, and claimants failed to raise a triable issue
of fact. It is well established that “something more than a mere
choice between conflicting opinions of experts” is required to raise
an issue of fact with respect to defendant’s liability for its traffic
planning decisions (Weiss, 7 NY2d at 588). We reject claimants’
contention that defendant’s failure to conduct a study of the
intersection in 2002 demonstrates that defendant did not adequately
study the intersection. Defendant established that it completed
studies of the intersection in 1998, 2000, 2005, 2007, and 2009, all
prior to the subject accident. Additionally, it would be improper to
speculate what such a study in 2002 might have revealed “with the
benefit of hindsight” (Friedman, 67 NY2d at 285-286).

     Claimants’ contention that defendant’s 2005 “Highway Safety
Investigation” of the intersection should be discounted because it did
not include a “signal warrant study” and did not consider whether “the
flashing light was adequately performing its intended function” is
improperly raised for the first time on appeal (see Ciesinski v Town
of Aurora, 202 AD2d 984, 985) and, in any event, lacks merit. Even if
we discounted the 2005 study, we would conclude that defendant’s other
studies of the intersection were adequate (see generally Kosoff-Boda v
County of Wayne, 45 AD3d 1337, 1338).

     Finally, we reject claimants’ contention that the State’s 2007
study was inadequate and/or lacked a reasonable basis. In our view,
defendant established that the 2007 study was the product of careful
review (see generally Friedman, 67 NY2d at 285-286).




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
