Upon the foregoing papers, the motion of defendant THE CITY OF NEW YORK for summary judgment dismissing the complaint and all cross claims against it is granted; the uncalendared cross motions of plaintiffs and defendant/third-party plaintiff STACEY O'NEIL for leave to amend the complaint and the bill of particulars are denied.

Plaintiffs commenced this action to recover damages for injuries allegedly sustained by them when the vehicle in which they were riding was struck by a NEW YORK CITY TRANSIT AUTHORITY BUS operated by defendant CHARISE WAYMER. At the time in question, defendant/third-party plaintiff STACEY O'NEIL was operating the plaintiffs' vehicle, which was owned by plaintiff MICHAEL O'NEIL.

According to the complaint, defendant STACEY O'NEIL was operating the O'NEIL vehicle and traveling south on Edison Street in Staten Island, New York, when she approached a stop sign at its intersection with Midland Avenue. It is claimed that MS. O'NEIL stopped at the stop sign and [*2]looked to her left and right. When she allegedly did not see any approaching vehicles on Midland Avenue, she cautiously proceeded forward because a fence was blocking her view. At this point, she still did not see any approaching vehicles, whereupon she began to turn right onto Midland Avenue. It was at this juncture that the O'NEIL vehicle was struck by a TRANSIT AUTHORITY bus traveling east on Midland Avenue. There was no stop sign controlling eastbound traffic on Midland Avenue at Edison Street.

In moving to dismiss the complaint and/or for summary judgment, defendant THE CITY OF NEW YORK (hereinafter THE CITY) contends that it is not a proper party to the action, as it is a separate legal entity from defendant NEW YORK CITY TRANSIT AUTHORITY (hereinafter THE NYCTA), and is neither liable nor responsible for the tortious conduct of THE NYCTA. Moreover, since it does not manage, control or supervise THE NYCTA, THE CITY contends that it owed plaintiffs no duty of care. In the absence of duty, there can be no breach or liability on the part of THE CITY.

THE CITY further contends that even if plaintiffs' were permitted to amend their complaint to include allegations of negligent intersection design, it would still be entitled to summary judgment. According to THE CITY, in response to complaints, it had conducted a traffic study at this particular intersection over a twelve-week period in order to determine whether the volume of traffic warranted an all-way stop sign or a traffic signal.THE CITY contends that neither was installed because the traffic volume was far below the amount required under the Federal Manual of Uniform Traffic Control devices for the installation of an all-way stop sign. THE CITY further contends that while the number of accidents was also considered in its determination, so were other factors such as the negative effect of an additional traffic device on traffic flow and overall safety.

In view of the above, THE CITY maintains that it has satisfied its duty to maintain its roadways in a reasonably safe condition. In addition, THE CITY maintains that any determination by municipal officials with regard to the necessity, e.g., to improve an intersection, is a quasi-judicial function for which THE CITYmay not be cast in damages. Finally, THE CITY contends that the in the area of highway safety, it has long been held that the courts should not presume to review the determination of governmental planning bodies under the guise of allowing them to be challenged in negligence suits, and that there is no proof that any negligence on the part of THE CITY proximately caused this accident.

In their uncalendared cross motion, plaintiffs seek leave to amend their complaint and bill of particulars to include allegations that THE CITY failed to install proper traffic control devices. While the original complaint concededly does not contain any such allegation or theory of liability, plaintiffs contend that the Notices of Claim which they each filed contain allegations regarding, inter alia, the sufficiency and/or propriety of traffic control devices at the subject intersection, as well as the failure to conduct a proper survey of roadway conditions. Accordingly, plaintiffs contend that THE CITY cannot claim ignorance of these claims. Moreover, they maintain that leave to amend should be freely given in the absence of prejudice to the defendants. [*3]

In further support of their application, plaintiffs cite the EBT testimony of a CITY witness who testified that five preventable accidents were documented at the subject intersection within a twelve-month time period. This is alleged to prove that the installation of an all-way stop sign was required. Plaintiffs also submit the affidavit of an expert engineer who reviewed documents and visited the accident location before concluding, inter alia, that THE CITY's analysis of the subject intersection warranted the installation of an all-way stop sign. In particular, plaintiffs' expert stated that (1) THE CITY's 1998 analysis warranted the installation of an all-way stop sign based on its accident history; (2) conditions at the location such as the six-foot fence located at the northwest corner of the intersection created a well-known and well- recognized "sight distance" deficiency

which was not reported in the study; (3) the absence thereof rendered the study incomplete and inaccurate; (4) this sight deficiency affected the minimum safety standards required by the Manual of Uniform Traffic Control Devices; and (5) the qualifications of the persons who decided that an all-way stop was not necessary is unknown. According to this expert, had THE CITY performed a reasonable and adequate study of the subject intersection, it would have revealed the need for an all-way stop sign. It was also opined that such failure was a proximate cause of the subject collision.

In a second (uncalendared) cross motion, defendant/third-party plaintiff STACEY O'NEIL adopts and incorporates the arguments made by plaintiffs in support of their request for leave to amend.

With regard to its first argument, THE CITY correctly contends its bears no legal responsibility for the actions of the NYCTA with regard to the happening of the subject accident. Accordingly, plaintiffs 'claims of vicarious liability as against THE CITY are without merit and must be dismissed (see McGuire v. City of New York, 211 AD2d 428, 429).

With regard to the balance of THE CITY's motion to dismiss, as well as the cross motions for leave to amend the complaint to plead negligent design, it is well established that a municipality has an absolute, non-delegable duty to the public to keep its streets in a reasonably safe condition (see Weiss v. Fote, 7 NY2d 579, 584). In measuring this duty, however, the courts have long recognized that their power to intrude upon a municipality's planning and decision-making functions with regard to its traffic control system is limited, and that under the doctrine of "qualified immunity", a governmental body may only be held liable when its study of traffic conditions is plainly inadequate, or there is no reasonable basis for its traffic plan (Alexander v. Eldred, 63 NY2d 460, 466). Here, it is the opinion of this Court that THE CITY has submitted sufficient proof to establish prima facie that its decision not to install an all-way traffic sign at the subject location was not the product of inadequate study. Neither was its decision without a reasonable basis. In opposition, plaintiffs have failed to raise an issue of fact (see Zuckerman v. City of New York, 49 NY2d 557).

In support of its position, THE CITY has submitted the EBT transcripts of its Director of Signal Engineering and its Deputy Chief of the Intersection Control Unit, both of whom testified that the decision to install an all-way traffic sign or a traffic light at a particular intersection is dependent [*4]upon several factors as provided in the Federal Uniform Traffic Control Devices Guidelines. These include, inter alia, the volume of traffic and the number of accidents at a particular location within a certain time period. According to the testimony of the current Deputy Chief of Intersection Control, a three-year study of the subject intersection revealed that the volume of traffic at the

intersection of Midland Avenue and Edison Street was well below the volume indicated in the Federal guidelines. Nevertheless, the witness acknowledged that there were five preventable accidents at this location during one twelve-month time period, and was unable to explain why THE CITY declined to install an all-way traffic stop or signal at that location. However, according to the EBT testimony of THE CITY's Director of Signal Engineering, although the occurrence of five preventable accidents within a twelve-month time period may warrant the installation of a multi-way stop control, such a device might not be installed if it was determined, e.g., by traffic engineers that the installation would create more safety and/or traffic flow problems than it would resolve. At this point, other alternatives might be considered. Accordingly, while the witness could not specify the reason why an all-way stop was not installed in this particular case, he indicated that mitigating factors such as the extremely low volume of traffic may well have been considered. This testimony, in the opinion of this Court, is sufficient to establish that THE CITY's decision or plan was neither unreasonable nor inadequate, or that it rendered less than due care in making its decision.

On the basis of this evidence, it is the determination of this Court that THE CITY has sufficiently established that the decision not to install an all-way stop sign at the intersection of Midland Avenue and Edison Street was the "product of a deliberative decision-making process" (Boyd v. Trent, 262 AD2d 260, 261), and accordingly, is qualifiedly immune from judicial scrutiny. "[T]he courts [will] not go behind the ordinary performance of planning functions by the officials to whom those functions are entrusted" (Weiss v. Fote, 7 NY2d at 584). As the Court of Appeals has explicitly recognized "[t]o accept a jury's verdict as to the reasonableness and safety of a plan of governmental service and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts" (id. at 585, 586).

In opposition, plaintiffs have failed to raise a triable issue of fact, whether through conflicting opinion of their expert or otherwise. "[S]omething more than a mere choice between conflicting opinions of experts is required before the [CITY] ... may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public" (see Weiss v. Fote, 7 NY2d at 588).

In view of the foregoing, the cross motions for leave to amend the complaint and the bill of particulars to include allegations of negligent intersection design must be denied.

Accordingly, it is

ORDERED that the motion of defendant THE CITY OF NEW YORK for summary judgment dismissing the complaint and all cross claims against it is granted, and the complaint and all cross claims as against this defendant are hereby severed and dismissed; and it is further

ORDERED that the (uncalendared) cross motions for leave to amend the complaint and the bill of particulars are denied; and it is further

ORDERED that the Clerk enter judgment and mark its records accordingly.

The foregoing constitutes the Decision and Order of the Court.

Law Clerk to notify all parties of this Decision/Order.

Dated: September 18, 2007/s/

Hon. Thomas P. Aliotta, J.S.C.

DIJOSEPH & PORTEGELLO, P.C.

ATT: ARNOLD E. DIJOSEPH, III, ESQ.

50 BROADWAY

NEW YORK, NY 10004

FIEDELMAN, GARFINKEL & LESMAN, ESQ.

110 WILLIAM STREET

NEW YORK, NY 10038

MICHAEL A. CARDOZO, ESQ.

CORPORATION COUNSEL OF THE

CITY OF NEW YORK

ATT: JENNIFER M. MARCUS, ESQ.

60 BAY STREET, 4TH FL.

STATEN ISLAND, NY 10301

WALLACE D. GOSSETT, ESQ.

130 LIVINGSTON STREET, 11TH FL.

BROOKLYN, NY 11201

PETER D. MORRIS, ESQ.

60 EAST 42 STREET, STE 3126

NEW YORK, NY 10165