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

528
CA 15-01703
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


MARK DODGE AND KRISTEN DODGE,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

COUNTY OF ERIE, DEFENDANT-APPELLANT,
ET AL., DEFENDANTS.


MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (THOMAS J. NAVARRO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

ROSENTHAL, KOOSHOIAN & LENNON, LLP, BUFFALO (PETER M. KOOSHOIAN OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Donna M.
Siwek, J.), entered January 16, 2015. The order, insofar as appealed
from, denied that part of the motion of defendant County of Erie
seeking summary judgment dismissing the complaint of plaintiffs Mark
Dodge and Kristen Dodge.

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

     Memorandum: The County of Erie (defendant) appeals from an order
insofar as it denied that part of its motion for summary judgment
dismissing plaintiffs’ complaint, which alleges that Mark Dodge
(plaintiff) sustained injuries as a result of a motor vehicle
collision that occurred on a road owned by defendant. Supreme Court
properly denied that part of the motion. Defendant had a duty to
maintain its highway and intersection in a condition reasonably safe
for motorists (see Friedman v State of New York, 67 NY2d 271, 283;
Tomassi v Town of Union, 46 NY2d 91, 97), and that duty was not
negated by plaintiff’s failure to heed the stop sign controlling his
lane of travel and his failure to yield the right-of-way to the other
vehicle. The negligence of a plaintiff in violating the rules of the
road will not relieve a municipality of liability for its negligence
in the design, construction, or maintenance of a highway (see
Bottalico v State of New York, 59 NY2d 302, 306; see also Land v
County of Erie, 138 AD3d 1462, 1463). As we recently concluded in
Land, “[n]o meaningful legal distinction can be made between a
traveler who uses [an intersection] with justification and one who
uses it negligently insofar as such conduct relates to whom a duty is
owed to maintain the [intersection]. The comparative fault of the
driver, of course, is relevant to apportioning liability” (138 AD3d at
                                 -2-                           528
                                                         CA 15-01703

1463 [internal quotation marks omitted]). Here, we conclude that
there are triable issues of fact concerning whether defendant was
negligent and, if so, whether such negligence was a proximate cause of
the accident, or whether plaintiff’s negligence in running the stop
sign was the sole proximate cause of the accident (see Poveromo v Town
of Cortlandt, 127 AD3d 835, 838; see also Land, 138 AD3d at 1463).

     We further conclude that defendant failed to establish on its
motion its entitlement as a matter of law to the qualified immunity
set forth in Weiss v Fote (7 NY2d 579, 585, rearg denied 8 NY2d 934).
Defendant may have demonstrated that the placement of the “stop ahead”
sign near the intersection, and possibly also the decision not to
reposition the stop sign itself, were the product of an informal study
and a resultant plan, but defendant failed to demonstrate that the
overall design of the intersection was in fact “the product of any
prior study or plan,” as necessary to be accorded qualified immunity
(Brown v State of New York, 79 AD3d 1579, 1582, citing Cummins v
County of Onondaga, 198 AD2d 875, 877, affd 84 NY2d 322). “There is a
triable issue of fact concerning whether defendant’s [design and
maintenance of] the intersection . . . was the product of adequate
study and a reasonable planning decision . . . or instead was
negligent” (Drake v County of Herkimer, 15 AD3d 834, 835).

     We have considered the remaining contention of defendant and
conclude that it is without merit.




Entered:   June 10, 2016                        Frances E. Cafarell
                                                Clerk of the Court
