Kurtis R. Madden, a Minor, by this Mother and Natural Guardian, WENDY L. MADDEN and WENDY L. MADDEN, Individually, Plaintiffs,
The Town of Greene, Dean Calice, and CHRIS FREEMAN, Defendants.
THORN GERSHON TYMANN and BONANNI, LLP, Arthur H. Thorn, Esq., Attorneys for Plaintiffs
LYNCH LAW OFFICE, Andrew J. Schwab, Esq., Attorneys for Defendant Town of Greene
Paul Mullin, Esq., Attorneys for defendants Dean Calice and Chris Freeman
HON. PHILLIP R. RUMSEY, Supreme Court Justice
Several motions are currently pending.  The court will first consider those made by defendant Town of Greene which, if granted, would result in dismissal of plaintiffs' remaining claim for negligent design and construction of the guiderail, namely: (1) defendant's motions asserting that plaintiff's design claim is barred by the statute of limitations and (2) defendant's motion for leave to renew its 2007 summary judgment motion, which is based on the argument that — due to changes in the law — it is now entitled to absolute immunity from plaintiffs' remaining claim. 
DEFENDANT'S STATUTE OF LIMITATIONS DEFENSE
In a decision and order dated March 17, 2011, this court determined, inter alia, that plaintiffs' claim for negligent design is not barred by the statute of limitations, because it accrued upon the happening of the accident (see Decision and Order dated March 17, 2011 [the prior order], p. 5, n. 2). Defendant moved to reargue the prior order, asserting that the court erred in rejecting its statute of limitations defense. Defendant also appealed the prior order. The appeal was decided while the motion to reargue was pending. The Appellate Division held, on May 3, 2012, in relevant part, that defendant's argument that the design claim is time barred was not properly before this court because it was first raised in defendant's reply affidavit and, therefore, that this court's comments regarding the statute of limitations — as set forth in a footnote in the prior order — do not constitute the law of the case (see Madden v Town of Greene, 95 A.D.3d 1426 , citing Willette v Willette, 53 A.D.3d 753, 755 , Luft v Luft, 52 A.D.3d 479, 480 , Yechieli v Glissen Chem. Co., Inc., 40 A.D.3d 988, 989 ). The parties have subsequently had opportunities to fully address the statute of limitations issue — which was not decided on the appeal from the prior order — thereby permitting this court to now properly make a determination on the merits that will constitute the law of the case (see Matter of Kennelly v Mobius Realty Holdings LLC, 33 A.D.3d 380, 381 — 382 ; Basile v Grand Union Co., 196 A.D.2d 836 ; Fiore v Oakwood Plaza Shopping Ctr., 164 A.D.2d 737 , affd 78 N.Y.2d 572 , cert denied 506 U.S. 823 ; cf. Matter of TIG Ins. Co. v Pellegrini, 258 A.D.2d 658 ). Accordingly, the court grants defendant's motion to reargue, in the interest of resolving the statute of limitations issue prior to trial.  After considering all of the parties' respective submissions that address whether the negligent design claim is time-barred — specifically including all that have been filed since the date of the prior order — the court adheres to its original determination (see CPLR 2221[f]).
A cause of action against a municipality must be commenced "within one year and ninety days after the happening of the event on which the claim is based" (General Municipal Law § 50-i). A cause of action founded upon the alleged active negligence of a municipality in creating a defective or dangerous condition in a public road arises on the happening of the event that causes the dangerous condition (see Kiernan v Thompson, 73 N.Y.2d 840');">73 N.Y.2d 840 ; Sniper v City of Syracuse, 139 A.D.2d 93');">139 A.D.2d 93, 95 ). By contrast, a negligence claim based upon a municipality's breach of its continuing nondelegable duty to construct or maintain its public roadways in a reasonably safe condition — a duty that is independent of its duty not to affirmatively create a defective or dangerous condition — accrues on the happening of the accident (see Kiernan, 73 N.Y.2d at 842; Sniper v City of Syracuse, 139 A.D.2d at 95 — 96).
In this case, as the court previously noted, plaintiffs' remaining claim against defendant is a design defect claim:
"Based on the record before it on the [parties' respective 2007] summary judgment motions, this court held that, insofar as plaintiff alleged that defendant had been negligent by failing to install a proper or sufficient guide rail, he had stated a claim for design defects' to which written notice provisions do not apply — a determination that was affirmed by the Appellate Division, Third Department (see Madden v Town of Greene, 64 A.D.3d 1117');">64 A.D.3d 1117, 1119 , citing Lugo v County of Essex, 260 A.D.2d 711, 713 , Temple v Chenango County, 228 A.D.2d 938, 938 — 939 ; see also Ferguson v Sheahan, 71 A.D.3d 1207 ; Merchant v Town of Halfmoon, 194 A.D.2d 1031 )."
Prior order, pp. 4 — 5.
Claims that a municipality negligently failed to design and install a sufficient guiderail are not founded upon allegations that a municipality affirmatively created a dangerous condition — like creating a crack in a sidewalk by removing a tree stump (Kiernan) or creating a depression in a street by repairing a water line (Sniper). Rather, as in this case, they are founded upon allegations that a municipality breached the continuing nondelegable duty to construct and maintain its roads in a reasonably safe condition by (1) failing to install a guiderail in the location where the accident occurred; (2) installing a guiderail that did not meet applicable engineering standards when it was installed; or (3) failing to upgrade a guiderail to meet later design standards when there is a history of accidents or upon significant repair or reconstruction of the road (see Madden, 64 A.D.3d at 1119 — 1120; see also Ferguson v Sheahan, 71 A.D.3d 1207, 1208 — 1209 ; Lugo v County of Essex, 260 A.D.2d 711, 713 ; Temple v Chenango County, 228 A.D.2d 938, 938 — 939 ; Merchant v Town of Halfmoon, 194 A.D.2d 1031 ). Accordingly, such claims accrue on the happening of the accident and, therefore, plaintiffs' design defect claim is timely. 
In light of the determination that plaintiffs' negligent design claim was timely asserted, defendant's motions seeking leave to file a late motion for summary judgment dismissing plaintiffs' design claim on the basis that it is time-barred are denied. It further bears noting that such motions must also be denied because defendant failed to show good cause for its delay in seeking such relief (see Brill v City of New York, 2 N.Y.3d 648 ; City v County of Clinton, 42 A.D.3d 612 ; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:12). Defendant's explanation for its delay in seeking leave to file a late summary judgment motion is inherently contradictory and inconsistent with its previous submissions and the decisions previously rendered in this case. While acknowledging that the negligent design and construction issue was raised by plaintiffs in opposition to defendant's original summary judgment motion — made in July 2007 — it then argues that plaintiffs' negligent design and construction claim became clear only when they served their expert witness disclosure (see Affirmation of Andrew J. Schwab dated April 26, 2011, ¶¶ 38, 40). Defendant's explanation is belied by its own submission in 2007 of the affidavit of a licensed professional engineer addressing the issue of guiderail design and by the fact that defendant's counsel conceded the existence of plaintiff's negligent design claim in 2009 (see prior order, pp. 4 — 5). Clearly, defendant has had notice — at least since this court's decision dated May 21, 2008 was affirmed by decision dated July 30, 2009 — that plaintiffs had stated a negligent design claim to which written notice provisions do not apply. Defendant provides no plausible explanation for its delay of approximately two years in seeking leave to move to dismiss plaintiffs' design defect claim based upon its statute of limitations defense. Accordingly, defendant's motions for leave to file a late summary judgment motion are denied.
DEFENDANT'S MOTION TO RENEW — QUALIFIED IMMUNITY
A motion to renew may be based upon a change in the decisional law that would change the prior determination (see Matter of Patterson v New York State Dept. of Correctional Servs., 71 A.D.3d 1349 , lv denied 15 N.Y.3d 703 , citing CPLR 2221[e], Dinallo v DAL Elec., 60 A.D.3d 620, 621 ). Defendant contends that three cases decided by the Court of Appeals after filing of its original summary judgment motion in 2007 — Valdez v City of New York, 18 N.Y.3d 69');">18 N.Y.3d 69 (2011); DiNardo v City of New York, 13 N.Y.3d 872');">13 N.Y.3d 872 (2009); and McLean v City of New York, 12 N.Y.3d 194');">12 N.Y.3d 194 (2009) — announce a significant change in the law that now requires a determination that it has absolute immunity from plaintiffs' design defect claim. Specifically, it argues that the doctrine of qualified immunity has been completely replaced by governmental immunity, pursuant to which a municipality may never be liable for any discretionary governmental functions, including highway design. It is mistaken.
The Court of Appeals itself noted that neither Valdez nor McLean announced a new rule, but merely "distilled" the analysis applied in prior cases (see Valdez, 18 N.Y.3d at 76 — 77).  In that regard, both cases serve to clarify the relationship between the special duty rule — necessary to establish a duty of care with respect to certain governmental acts — and the availability of absolute immunity for such acts. A careful reading of Valdez — a police protection case — and McLean — involving municipal registration of a daycare provider — and an analysis of the extensive body of Court of Appeals caselaw regarding governmental immunity for various types of governmental functions demonstrate that these two cases simply have no bearing on governmental action that has historically been afforded only qualified immunity, like highway design.
"With the enactment of Court of Claims Act § 8, the State waived the immunity that it had enjoyed solely by reason of its sovereign character" (see Arteaga v State of New York, 72 N.Y.2d 212');">72 N.Y.2d 212, 215 — 216 , citing Weiss v Fote, 7 N.Y.2d 579');">7 N.Y.2d 579, 585 — 586  [citation also omitted]). While assuming liability for actions involving everyday government operations, often referred to as ministerial actions, the common-law doctrine of governmental immunity continues to afford public entities immunity for governmental actions requiring the exercise of discretion (id. at 216; see also Valdez, 18 N.Y.3d at 75 — 76, citing Lauer v City of New York, 95 N.Y.2d 95 , Tango v Tuluvech, 61 N.Y.2d 34 ). Significantly, though, not all acts requiring the exercise of discretion have been afforded the same level of protection. Acts involving the conscious exercise of discretion of a judicial or quasi-judicial nature — like police protection — have been afforded absolute immunity, even if the action was negligent or malicious (see Arteaga, 72 N.Y.2d at 216, citing Tango, 61 N.Y.2d 34). The rationale for affording such acts absolute immunity is to permit public officials to exercise their discretion without fear of retaliatory lawsuits (see Arteaga, 72 N.Y.2d at 216; see also Valdez, 18 N.Y.3d at 75 — 76). This is the type of governmental function that was directly at issue in Valdez.
By contrast, discretionary actions not of a judicial or quasi-judicial nature, but which require the application of specialized expertise — like highway planning and design decisions — are afforded only qualified immunity (see Arteaga, 72 N.Y.2d at 216, citing Weiss and Friedman v State of New York, 7 N.Y.2d 271');">67 N.Y.2d 271 ). Qualified immunity — unlike absolute immunity — is negated by bad faith or the lack of any reasonable basis for the action (see Weiss, 7 N.Y.2d at 586; Friedman, 67 N.Y.2d at 284; Alexander v Eldred, 63 N.Y.2d 460, 466 ;15 NY Prac., New York Law of Torts § 17:54). Qualified immunity is based on an entirely different rationale than absolute immunity, namely, judicial deference to the expertise of coordinate branches of government in their performance of planning and design decisions (see Weiss, 7 N.Y.2d at 584 — 586; see also Selca v City of Peekskill, 78 A.D.3d 1160, 1161 ). The common-law doctrine of qualified immunity has been applied to highway design cases in New York since at least 1883 — long before the State waived sovereign immunity in 1929 (see Weiss, 7 N.Y.2d 579');">7 N.Y.2d 579, 583 — 585, citing Urquhart v City of Ogdensburg, 91 NY 67 ; see also Friedman, 7 N.Y.2d 271');">67 N.Y.2d 271; Alexander, 63 N.Y.2d 460; Joyce v State of New York, 152 A.D.2d 306 , lv denied 76 N.Y.2d 703  [discussing Urquhart and Weiss ]; see also Court of Claims Act § 8 [derived from Court of Claims Act of 1920 § 12-a, which was enacted in 1929]).
Defendant's argument that qualified immunity has been replaced with absolute immunity for all discretionary governmental actions ultimately rests on the Court of Appeal's observation that "[i]n Tango v Tulevech (61 N.Y.2d 34, 40 ), we made clear that discretionary acts may not be a basis of liability: [W]hen official action involves the exercise of discretion, the officer is not liable for the injurious consequences of that action even if resulting from negligence or malice.'" (McLean, 12 N.Y.3d at 194). Significantly, however, since deciding Tango in 1983 — where it stated that discretionary acts may not be a basis of liability — the Court of Appeals has continued to recognize that discretionary highway design decisions are afforded only qualified immunity (see e.g. Arteaga, 72 N.Y.2d at 216, citing Tango, Friedman, and Weiss; Affleck v Buckley, 96 N.Y.2d 553  [extending qualified immunity to a municipal defendant for a traffic planning decision, quoting Friedman and citing Weiss ]). In addition, the Appellate Division has continued to apply the traditional law of qualified immunity to highway design cases following McLean (see e.g. Reisner v Litman & Litman, P.C., 95 A.D.3d 858  [also decided after Valdez ]; Kuhland v City of New York, 81 A.D.3d 786 ; Brown v State of New York, 79 A.D.3d 1579 ; Betts v Town of Mount Morris, 78 A.D.3d 1597 ; Turturro v City of New York, 77 A.D.3d 732 ; Bresciani v County of Dutchess, 62 A.D.3d 639 ; see also Selca, 78 A.D.3d 1160 [a municipality was entitled to qualified immunity from the claim that it negligently designed a dock, where it was able to show that the design was adopted after adequate study and that there was a reasonable basis for the design]). It is plainly evident from the fact that the Court of Appeals and the Appellate Division have both continued to apply the doctrine of qualified immunity to highway planning and design decisions that Valdez and McLean do not change the long-standing law that highway design decisions are afforded only qualified immunity.
The error in defendant's argument is further apparent upon a review of the issue actually clarified in McLean and Valdez. In both cases, the Court of Appeals explained that establishing the existence of a duty is a necessary element of a negligence claim. Where negligence is alleged in the performance of either ministerial or quasi-judicial discretionary functions, a plaintiff must show that an agency of the government owed him or her a special duty beyond that owed to the public at large, and that one means of doing so is to establish the existence of a special relationship between the injured person and the governmental entity (see Valdez, 18 N.Y.3d at 75; McLean, 12 N.Y.3d at 199, 202 — 203). By contrast, no special relationship need be demonstrated in a claim involving negligent highway design decisions because municipalities owe a continuing nondelegable duty to construct or maintain public roadways in a reasonably safe condition that is imposed by statute (see Fulgum v Town of Cortlandt, 2 A.D.3d 775 , citing Highway Law § 140, Thompson v City of New York, 78 N.Y.2d 682, 685 ).
If an injured party establishes all of the elements of a negligence claim — including the existence of a duty of care — a governmental entity may still be able to avoid liability if an immunity defense is available. There is no immunity for ministerial acts (see Valdez, 18 N.Y.3d at 75 — 78; McLean, 12 N.Y.3d at 202 — 203; see also Arteaga, 72 N.Y.2d at 216). For discretionary acts of a judicial or quasi-judicial nature, a governmental entity will enjoy absolute immunity only if it timely raises the defense of governmental immunity and shows that the challenged action actually involved the exercise of discretion (see Valdez, 18 N.Y.3d at 76). It is only the potential availability of absolute immunity — a defense which must be timely asserted and proven — that led the Court of Appeals to state that there is never liability for acts of a discretionary quasi-judicial nature. The Court noted that:
"As we recently observed in McLean v City of New York (12 N.Y.3d at 203), when both of these doctrines [special duty rule and governmental function immunity defense] are asserted in a negligence case, the rule that emerges is that [g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general' (see also Dinardo, 13 N.Y.3d at 874). McLean did not announce a new rule—it merely distilled the analysis applied in prior cases such as Lauer (95 N.Y.2d 95; see also Garrett v Holiday Inns, 58 N.Y.2d 253 )."
Valdez, 18 N.Y.3d at 76 — 77 (emphasis supplied). The Court further noted that the immunity defense is often waived when it is not timely asserted by municipal defendants (id. at 78). For highway design defect claims, a municipality may obtain qualified immunity upon a showing that its decision was a product of the deliberate exercise of discretion (see Madden, 64 A.D.3d at 1120, citing Norton v Village of Endicott, 280 A.D.2d 853, 854 — 855 ). 
Thus, Valdez and McLean confirm only that a special relationship is one means of establishing the existence of a duty of care, but that the existence of a special relationship does not constitute an exception to the absolute immunity afforded to discretionary quasi-judicial acts. Defendant's argument that they mean much more — that the Court of Appeals dramatically expanded the scope of immunity afforded to highway planning and design decisions implicitly, without mentioning decades of long-settled precedent dating back to at least 1883 — is facially preposterous. It is based on quotations taken out of context from cases based on claims unrelated to highway planning and design decisions and overlooks the Court of Appeal's own observation that neither Valdez nor McLean announce any new rule regarding governmental immunity. Notably, it also ignores the fact that the Court of Appeals and the Appellate Division have continued to apply the doctrine of qualified immunity to design defect claims since Tango, Lauer, McLean, and Valdez. In other words, ...