Argued January 7, 1988
Decided February 9, 1988
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Robert M. Quigley, J.
Robert Abrams, Attorney-General (Michael S. Buskus, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.
Steven A. Maas and Stephen G. Brooks for respondent.
The order should be affirmed, with costs.
The record contains sufficient proof to create a question of fact as to the State's negligence in failing to conduct an adequate investigation and study in making its determination that the 25-mile-per-hour advisory speed sign was the appropriate traffic control device for the intersection. Thus, we reject the State's argument that it is protected from liability under the doctrine of qualified immunity stated in Weiss v Fote ( 7 N.Y.2d 579; see, Alexander v Eldred, 63 N.Y.2d 460, 465, 466; cf., Friedman v State of New York, 67 N.Y.2d 271, 280). We agree with the Appellate Division that Atkinson v County of Oneida ( 59 N.Y.2d 840) is distinguishable and that, therefore, the record presents a factual question whether the State's negligence was the proximate cause of the accident. Because they have support in the record, the affirmed findings as to the State's negligence, apportionment of fault between claimant and the State and the rejection of the State's seat belt defense (see, Spier v Barker, 35 N.Y.2d 444) are matters beyond our review. The State's alternative argument, urged for the first time on appeal, that claimant's failure to use a seat belt should have been considered on the issue of her comparative fault was not preserved for review.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Order affirmed, with costs, in a memorandum.