The following papers numbered 1-3 were read and considered by the Court on the State’s motion for summary judgment: Notice of Motion, Attorney’s Supporting Affirmation, Memorandum of Law and Exhibits 1 Attorney’s Affirmation in Opposition and Exhibits 2 The State’s Sur-Reply 3 DECISION AND ORDER In the case at bar, the undisputed facts are as follows. On November 11, 2015, at approximately 8:30 a.m., Mahmoud Khojasteh, hereinafter claimant, was driving a four-door sedan southbound on the Taconic State Parkway in Putnam Valley when claimant’s vehicle collided with a large boulder that fell from a rock slope adjacent to the parkway (see Photographs in the State’s Ex. E). The boulder impacted with the front passenger side of the vehicle and caused the vehicle to land on its side on the other side of the southbound lane of the parkway. As a result of the accident, claimant sustained personal injuries and property damage. The claim of Mandana Khojasteh, claimant’s wife, is derivative. The claim alleges that defendant was negligent in failing to properly inspect and maintain the safety of the rock slope to the traveling public. The State moves for summary judgment dismissing the claim. Claimants oppose the motion and ask the Court to search the record and grant summary judgment to claimants. Summary judgment is a drastic remedy which should not be granted unless it is made clear by the proponent of the application that there are no genuine issues of material fact (see Andre v. Pomeroy, 35 NY2d 361, 364 [1974]). “Failure to make such [a] prima facie showing requires a denial of the motion regardless of the sufficiency of the opposing papers” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). The State maintains that, due to a lack of any prior similar accidents, the State did not have any notice that the rock slope adjacent to the parkway presented a potentially dangerous condition. The State also maintains that it is entitled to qualified immunity for its planning decisions regarding the rock slope. In support of its motion, the State submits, inter alia, the deposition testimony of Matthew Charles, a New York State Department of Transportation (DOT) Engineering and Geologist II, with exhibits; the deposition testimony of Grant Adkins, a former DOT Engineering Geologist II, with exhibits; the deposition testimony of David Chomycz, a DOT Assistant Resident Engineer and the affidavit of Nicholas P. Pucino, P.E., who has vast experience in highway design, construction and maintenance, in addition to safety and accident investigations (State’s Exs. G-K). Charles testified to the characteristics of the rock slope in issue. He explained that gneiss rock is a metamorphose sedimentary rock which is generally stronger than much of the sedimentary rock located in other parts of the state (Ex. G, p 79). Accordingly, DOT’s Relative Risk Rating attributed to the rock slope pursuant to DOT’s site evaluations, was on the lower end of the scale (id. at 40; Exs. 2, 4 [attached to Ex. G]). Charles also testified to DOT’s procedures of ongoing inspections of rock slopes (Ex. G, pp 112-113; Ex. H, pp 26-27). Additionally, Chomycz and Adkins testified to DOT’s procedures of ongoing inspections of rock slopes (Ex. I, p 87; Ex. J, pp 51-52). Pucino also recounted the State’s procedures for monitoring the safety and classifying the rock slopes that required attention. Pucino noted that the five-year accident history at the location in issue did not reveal any rock falls prior to claimant’s accident. He also noted that there was no evidence that the rock slope at the accident site presented an unsafe condition prior to claimant’s accident nor was the rock slope classified as a significant priority requiring remediation. Pucino opined that the fallen rock on the date of claimant’s accident was a sudden occurrence. In opposition to the State’s motion and in support of claimants’ request for summary judgment, claimants submit an affidavit of Paul Worsey, a geologist, who maintained that the State’s maintenance and inspections of rock slopes was insufficient and that the rock slope in issue required remediation to comply with the Ritchie Ditch concept. In response to Worsey’s affidavit, Pucino noted Worsey’s lack of experience in highway inspection procedures and highway maintenance operations. Pucino’s affidavit further stated that he found no deficiencies in the standards and practices of the State’s ongoing inspections of rock slopes and the State’s prioritization of remediation projects. Pucino refuted Worsey’s opinion that the rock slope required remediation to comply with a Ritchie Ditch concept developed in the mid-60′s, years after the roadway was built. Pucino maintained that the roadway complied with the existing standards when built and that there was no evidence of a need for compliance with evolving standards. Analysis The State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition and that duty encompasses the area adjacent to the roadways (see Gomez v. New York State Thruway Auth., 73 NY2d 724 [1988]; Friedman v. State of New York, 67 NY2d 271 [1986]; Weiss v. Fote, 7 NY2d 579, 584 [1960]). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable (see Tomassi v. Town of Union, 46 NY2d 91 [1978]; Brooks v. New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]). Rather, for liability to attach, it must be established that the State had either actual or constructive notice of a potentially dangerous condition and failed to take reasonable measures to remedy such danger (see Friedman, 67 NY2d at 286; Schleede v. State of New York, 170 AD3d 1400 [3d Dept 2019]). “As a general rule, the State is not required to undertake expensive reconstruction of highways simply because the design standards for highways have been upgraded since the time of original construction” (Vizzini v. State of New York, 278 AD2d 562, 563 [3d Dept 2000]). Absent proof of a dangerous condition, the State is not required to upgrade any roadway to conform to new standards which evolved subsequent to the original construction (see Hay v. State of New York, 60 AD3d 1190 [3d Dept 2009]). While proof of prior accidents at the same location and under substantially similar circumstances may be offered on the issues of foreseeability of danger and notice, the record herein is devoid of any prior, similar accidents at the location in issue (see Vizzini, 278 AD2d at 563 [no history of accidents in the immediate area which would place the State on notice of a need for reconstruction or remediation of the culvert]; Martin v. State of New York, 305 AD2d 784 [3d Dept 2003] [the number of prior accidents was insufficient to put defendant on notice of a dangerous condition or impose a duty to take remedial action]; Light v. State of New York, 250 AD2d 988 [3d Dept 1998] [no evidence of unusual number of accidents to support a finding that the State had notice of a dangerous condition requiring remedial action]). In light of the absence of any rock falls within five years prior to claimant’s accident, the Court finds that the State did not have either actual or constructive notice of a potentially dangerous condition at the site of claimant’s accident (see Gray v. State of New York, 159 AD3d 1166 [3d Dept 2018] [State did not have actual or constructive notice that the slope was subject to or had mudslides]; Gagliardi v. State of New York, 148 AD3d 868 [2d Dept 2017] [State had no notice of dangerous condition and was entitled to qualified immunity for its highway planning decision]). Additionally, in the field of traffic design engineering, a government entity is accorded a qualified immunity from liability arising out of a highway planning decision unless the study was plainly inadequate or there was no reasonable basis for its plan (see Friedman, 67 NY2d 271; Weiss, 7 NY2d 579; Schwartz v. New York State Thruway Auth., 61 NY2d 955 [1984]). It is also well established that, “[s]omething more than a mere choice between conflicting opinions of experts is required before the State…may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public”(Weiss, 7 NY2d at 588). Here, the record showed that the State had a system of ongoing inspections of rock slopes by DOT engineers and geologists who monitored the stability and safety of the rock slopes and classified them according to a relative risk factor. The State’s plan was not shown to be plainly inadequate or without a reasonable basis. Thus, the Court finds that the State sufficiently established entitlement to qualified immunity for its highway planning decisions regarding its inspections, maintenance and prioritization of rock slopes in need of remediation (see Evans v. State of New York, 130 AD3d 1352 [3d Dept 2015] [claim dismissed based on State's qualified immunity for its planning decisions]). Accordingly, the State’s motion for summary judgment dismissing the claim is hereby GRANTED. Dated: October 9, 2019 White Plains, New York
