BOVA
v.
COUNTY OF SARATOGA

Appellate Division of the Supreme Court of New York, Third DepartmentFeb 11, 1999
258 A.D.2d 748 (N.Y. App. Div. 1999)
258 A.D.2d 748685 N.Y.S.2d 834

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February 11, 1999

Appeal from the Supreme Court (Ferradino, J.).


At approximately 7:30 P.M. on December 27, 1991, defendant Ryan W. Putnam, driving a vehicle with four other passengers traveling west on Saratoga County Route 80, had an automobile accident. As Putnam's vehicle was entering into a curve in the roadway where a large culvert crossed beneath it, it is alleged that notwithstanding his attempt to turn the wheel into the curve, the car continued in a straight direction and struck a cement headwall which caused the vehicle to flip over into a small stream pool. All occupants escaped from the vehicle except for Kenneth C. White (hereinafter decedent). The police accident report indicates that Putnam's vehicle was traveling at an excessive rate of speed as evidenced by the 97-foot skid mark, warranting the issuance of a citation to Putnam for imprudent speed ( see, Vehicle and Traffic Law § 1180 Veh. Traf. [a]).

For the purposes of this appeal, the County assumed that Putnam's vehicle was traveling between 35 and 40 miles per hour.

This action was thereafter commenced alleging, inter alia, that defendant County of Saratoga was negligent in that it, inter alia, failed to erect guardrails at the location where Putnam went off the road, failed to properly install signs or other devices to give adequate notice of the dangerous condition of the road and that its negligence caused the accident. After discovery, the County moved for summary judgment contending, inter alia, that its prior written notice statute barred liability and that because the alleged deficiency in the road was not the proximate cause of the accident, plaintiff failed to set forth a prima facie showing of negligence. Plaintiff countered that the replacement of old concrete guide posts which marked the corner with reflective posts was an act of affirmative negligence which would not be barred by the County's prior written notice law and that the manner in which the corner was signed was a contributing factor to the accident.

With Putnam's examination before trial revealing that he had driven that particular stretch of road "hundreds of times" and that on the night of the accident he was fully aware that the driver's side front tire was low on air and that he paid no attention to any of the signs leading up to the corner where the accident occurred, Supreme Court found that the signs were not a proximate cause of the accident. As to the County's act of replacing the old concrete guide posts with the smaller reflective "delineators," it found that such determination was "precisely * * * the type of nonfeasance that statutes such as [the] Local Law * * * were intended to address". Upon the dismissal of the complaint, plaintiff appeals.

The County's Prior written notice statute specifies that for the County to be held liable for damages related to injuries caused by a "defective, out of repair, unsafe, dangerous, or obstructed" (Local Laws, 1985, No. 5 of the County of Saratoga) condition of a highway, bridge, or culvert, it must first receive written notice of that condition ( id.). We find that the provisions thereof do not apply when the action is based upon a failure to maintain or erect traffic signs ( Alexander v. Eldred, 63 N.Y.2d 460, 467) or a failure to construct a proper impact absorbing barricade ( see, Hughes v. Jahoda, 75 N.Y.2d 881, 883). To the extent that the complaint can be found to allege passive negligence or nonfeasance by the County, the dismissal of such claims upon the failure to provide written notice was proper ( see, Merchant v. Town of Halfmoon, 194 A.D.2d 1031, 1032).

Left to address plaintiff's allegations that the County's acts of affirmative negligence in failing to erect guardrails contributed to decedent's death, we find that the proffer of Alvin Bryski's affidavit, which identifies him as a professor of engineering technology at a local community college and engaged since 1969 "as a consulting engineer regarding highway design construction, accident reconstruction, and other safety matters," to be inadequate. Although the affidavit references a curriculum vitae which purportedly sets forth his qualifications, no such document was included. While the affidavit specifically describes the accident scene, Bryski's conclusory statements abound with indications that the physical configurations detailed therein "meet long-standing criteria for guardrails". Further speckled with opinions, based upon "a reasonable degree of engineering certainty", that the failure to erect guardrails in this instance "constitutes a ultra-hazardous condition which in good engineering practice mandates the placements of guide rails in order to protect the traveling public", all a "substantial factor in causing the injuries", we note the absence of any reference to outside material to support the statements made.

Although courts have, at times, relied upon the expertise of a witness "to support the inference that the opinion is based on knowledge acquired through personal professional experience" ( Romano v. Stanley, 90 N.Y.2d 444, 452), courts have, at other times, required that the expert's affidavit "makes reference to outside material `"`of a kind accepted in the profession as reliable in forming a professional opinion'"'" ( id., at 452, quoting Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 726). Here, we have neither an outside reference nor a litany of Bryski's professional licenses, degrees or other affiliations. Having previously analyzed one of Bryski's affidavits as "purely speculative and * * * lack[ing] sufficient probative force to constitute prima facie evidence of negligence" since there was no foundation or indication of applicable industry standards or practices to support the conclusions reached ( Morrison v. Flinstosh, 163 A.D.2d 646, 648), we must similarly conclude here.

To the extent that plaintiff's claim is based upon the County's improper placement of road signs, we find the County to have sustained its prima facie showing that the placement of signs approaching the accident scene was proper. Photographs were offered as was the affidavit of John Miller, supervisor of the traffic division of the County Department of Public Works. Miller's affidavit established that the placement of signs comported with the New York State Uniform Manual of Traffic Control Devices Guidelines and that the posted advisory speed was five miles per hour lower than that required. Supporting this was Putnam's own testimony that he was fully aware that the vehicle's driver's side front tire was low on air at the time of the accident and that, notwithstanding this knowledge, he failed to fix it. He further testified that he was very familiar with this portion of the road, having driven over it "[h]undreds of times", paying no attention to the signs leading up to the curve on the evening of the accident. In fact, he commented that "[i]t was just not something that I looked at every time I drove by". With the burden shifted upon plaintiff to come forward with evidence that would raise a triable issue of fact ( see, Miller v. City of Troy, 224 A.D.2d 887), we find that the proffer of similar photographs and allegations that the placement of the signs confused Putnam to be insufficient ( see, Boucher v. Town of Candor, 234 A.D.2d 669; Good v. County of Sullivan, 198 A.D.2d 706).

Accordingly, we affirm the order of Supreme Court.

Mikoll, J. P., Crew III, Spain and Graffeo, JJ., concur.

Ordered that the order is affirmed, without costs.