Preview
FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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SUZANNE SCHULMAN, AS ADMINISTRATRIX OF THE
ESTATE OF BRITTNEY M. SCHULMAN, DECEASED, ALICIA
M. ARUNDEL; OLGA LIPETS; MINDY GRABINA, AS Index No. 611214/15
ADMINISTRATRIX OF THE ESTATE OF AMY GRABINA,
AND MINDY GRABINA, INDIVIDUALLY; STEVEN BARUCH,
AS ADMINISTRATOR OF THE ESTATE OF LAUREN
BARUCH, DECEASED AND STEVEN BARUCH,
INDIVIDUALLY; JOELLE DIMONTE; MELISSA A. CRAI AND
ARTHUR A. BELLI JR., AS PARENT AND NATURAL
GUARDIAN OF STEPHANIE BELLI, DECEASED, AND AS
THE ADMINISTRATOR OF THE ESTATE OF STEPHANIE
BELLI,
Plaintiffs,
-against-
ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO,
ROMEO DIMON MARINE SERVICE, INC., STEVEN
ROMEO, TOWN OF SOUTHOLD AND COUNTY OF
SUFFOLK, CABOT COACH BUILDERS, INC., d/b/a
ROYALE LIMOUSINE and “XYZ COMPANIES 1-5”
name being fictitious but intended to be the remanufacturers,
distributors and/or sellers of the 2007 Lincoln Town Car
stretch limousine involved in the collision,
Defendants.
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REPLY MEMORANDUM OF LAW
VOLZ & VIGLIOTTA, PLLC
Attorneys for Defendant, Town of Southold
280 Smithtown Blvd.
Nesconset, New York 11767
(631) 366-2700
Of Counsel:
David H. Arntsen, Esq.
Joshua S. Shteierman, Esq.
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TABLE OF CONTENTS
TABLE OF AUTHORITIES …………………………………………………………………. i, ii
PRELIMINARY STATEMENT …………………………………………………………………1
ARGUMENT……………………………………………………………………………………...4
POINT ONE
THERE ARE NO TRIABLE QUESTIONS OF FACT CONCERNING THE
LEGAL DUTY OF CARE HEREIN ……………………………………………...4
POINT TWO
ACTUAL NOTICE TO THE TOWN, THOUGH LACKING, DOES NOT
CREATE LIABILITY IN THE ABSENCE OF LEGAL DUTY ………..……….11
POINT THREE
THE TOWN DID NOT ASSUME A DUTY OF CARE BASED UPON THE
COUNTY’S INACTION………………………………………………………...12
POINT FOUR
THE TOWN’S AUTHORITY TO ERECT SIGNS UNDER THE VEHICLE AND
TRAFFIC LAW DOES NOT GIVE RISE TO A DUTY OF CARE ……………..14
POINT FIVE
THERE ARE NO TRIABLE QUESTIONS OF FACT CONCERNING THE
TOWN’S ABSENCE OF NEGLIGENCE AND PINO’S NEGLIGENCE AS A
MATTER OF LAW ……………………………………………………………...15
CONCLUSION ………………………………………………………………………………….16
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TABLE OF AUTHORITIES
CASES
Amato v. County of Erie,
247 A.D.2d 846, 669 N.Y.S.2d 1104 (4th Dept. 1998) …………………………………….5
Atkinson v. Oneida County,
77 A.D.2d 257, 432 N.Y.S.2d 970 (4th Dept. 1980) ……………………………………...13
Beardsley v. State of New York,
57 A.D.2d 1061, 395 N.Y.S.2d 848 (4th Dept. 1977) …………………………………….14
Cain v Pappalardo,
225 A.D.2d 1005, 639 N.Y.S.2d 570 (3rd Dept. 1996) …………………………………….7
Deng v. Young,
163 A.D.3d 1469, 81 N.Y.S.3d 699 (4th Dept. 2018) …………………………………….10
Ernest v. Red Creek Center School District,
93 N.Y.2d 664, 695 N.Y.S.2d 531 (1999) …………………………………………9, 10, 14
Estate of Konstantatos v. County of Suffolk,
208 A.D.2d 889, 618 N.Y.S.2d 90 (2nd Dept. 1994) ……………………………..2, 7, 8, 10
Kupferman v County of Nassau,
17 A.D.3d 638, 794 N.Y.S.2d 100 (2nd Dept. 2005) ……………………………………….5
Lattanzi v. State of New York,
74 A.D.2d 378, 428 N.Y.S.2d 331 (3rd Dept. 1980) ………………………………...……..9
Magliano v. Merckling,
88 A.D.2d 825, 472 N.Y.S.2d 419 (2nd Dept. 1984) ………………...……….………...6, 9
Maleski v Lenander,
38 A.D.3d 1192, 831 N.Y.S.2d 810 (4th Dept. 2007), lv denied, 9 N.Y.3d 803 (2007) …..16
McDevitt v. State,
1 N.Y.2d 540, 154 N.Y.S.2d 874 (1956).…………………………………………………13
Ossmer v. Bates,
97 A.D.2d 871, 469 N.Y.S.2d 273 (3rd Dept. 1983) ……………………………….1, 12, 15
Ostroski v. Baldi,
61 A.D.3d 1403, 877 N.Y.S.2d 546 (4th Dept. 2009), lv denied, 13 N.Y.3d 701 (2009)
……...……………………………………………………………………………...…3, 4, 7
i.
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Pulka v Edelman,
40 N.Y.2d 781, 390 N.Y.S.2d 393 (1988) ………………………………………………..15
Tamm v. State of New York,
29 A.D.2d 601, 285 N.Y.S.2d 753 (3rd Dept. 1967), affd. 26 N.Y.2d 719 (1970) …..13, 14
STATUTES
NEW YORK VEHICLE AND TRAFFIC LAW §1651 ………………………………………..…5
NEW YORK STATE VEHICLE AND TRAFFIC LAW §1652-b …………………………….5, 6
NEW YORK STATE VEHICLE AND TRAFFIC LAW §1660(a)(5) ………………………..…10
NEW YORK STATE VEHICLE AND TRAFFIC LAW §1622 …………………………….….12
PUBLIC AUTHORITIES LAW §153-b ………………………………………………………….9
SOUTHOLD TOWN CODE §260-2 …………………………………………………………….15
SOUTHOLD TOWN CODE §260-3.1 …………………………………………………………..15
ii.
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PRELIMINARY STATEMENT
The Town of Southold (“the Town”) submits this Memorandum of Law in reply to the
Plaintiffs’ Joint Memorandum of Law (“JMOL”) in opposition to the Town’s motion for summary
judgment and dismissal of all claims against it in this case. Plaintiffs also submit the affirmations
of counsel1, as well as the affidavits of a Town resident and a proposed expert.2 It is respectfully
submitted to the court that the Plaintiffs collectively fail to establish, as a matter of law, that the
Town herein had or assumed a legal duty with regard to maintenance and control of the County
Road, CR 48, at its intersection with Depot Lane, a Town road, in the Town of Southold.
The question as to a party’s legal duty is for the Court. In the absence of duty, there is no
breach and without a breach there is no liability. Ossmer v. Bates, 97 A.D.2d 871, 469 N.Y.S.2d
273 (3rd Dept. 1983). Plaintiffs raise no issue of fact sufficient to rebut the Town’s showing of
entitlement to judgment based on the absence of such a legal duty of the Town to maintain or
control the County Road. Each and every contention of the Plaintiffs in opposition was anticipated
and addressed in the Town’s motion in chief and was refuted on the facts and applicable law.
Plaintiffs’ offer no legal authority to contradict the Town’s showing.
The Plaintiffs point out that the Town, subject to an agreement with the County, was to
repair the light fixture present at the time of the subject accident if repair was needed. The
agreement, however, did not involve the design and installation of the traffic signal, which design
1
Each plaintiff’s counsel submitted an affirmation in opposition in which each adopted and incorporated by reference
the “arguments, exhibits, and affidavits” of Plaintiffs Crai and DiMonte as set forth in their affirmations, joint
memorandum of law and counterstatement of facts. Counsel for Plaintiff Grabina likewise joined in the Crai/DiMonte
opposition, but nonetheless sets forth nearly identical contentions and argument (as well as case law improperly
submitted in attorney’s affirmation) which appears to have been taken from the Crai/DiMonte papers. It is respectfully
requested that the Court consider this Reply Memorandum as submitted in opposition to all of the opposition papers
submitted by plaintiffs’ counsel and counsel for the codefendants who opposed the motion.
2
The Crai/DiMonte Memorandum of Law is jointly submitted on behalf of the Plaintiffs. No other Memorandum of
Law was submitted in opposition to the Town’s motion.
1
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and installation was undertaken by the County. (Dresch Transcript, Town Exhibit “M”, p. 106) 3.
From this proposition the Plaintiffs ask the Court to infer a legal duty on the Town to itself
determine how and with what traffic control devices traffic at the intersection should be controlled.
Plaintiffs offer no factual or legal support for this proposition; in fact, all of the evidence before
the Court and the case authorities relied upon by the Town contradict such an inference. Moreover,
the Plaintiffs make no allegation in this case that the flashing signal in place on the date of this
accident was in need of repair or maintenance or that the faulty operation of the light was a
contributing cause of the accident. As such, Plaintiffs fail to raise an issue of fact on this ground
sufficient defeat the motion.
Plaintiffs allege that the Town was the “only police agency that patrolled the intersection,
monitored the traffic, issue(d) summons’ for traffic violations, and responded to investigative
traffic accidents…” (MOL in Opposition, ¶ 60) and that these law enforcement activities either
created or reflected the assumption of a duty as to the control and maintenance of the County Road.
The Town negated this contention as a matter of law, citing Estate of Konstantatos v. County of
Suffolk 208 A.D.2d 889, 890, 618 N.Y.S.2d 90 (2nd Dept. 1994), in which the Court addressed and
rejected this precise contention, holding that:
“Plaintiff’s argument would render a municipality liable in tort for the
consequences of any condition existing on a roadway which it neither owns,
designs, maintains, controls or repairs, simply because it enforces traffic
regulations there. Such a result would render meaningless the (County’s)
statutory responsibility for maintenance of its roadways and the traffic control
devices located thereon.”
The Town’s diligent law enforcement efforts at the intersection do not give rise to a legal duty to
maintain the County Road.
3
The same arrangement was in place for the traffic light installed after the subject accident-that light was also designed
and installed by the County with maintenance and repair of the light to be performed as needed by the Town by
contract.
2
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Plaintiffs further allege that the Town erected no parking signs on CR 48 at a winery to
the west of the intersection with the consent and the approval of the County and that this is
tantamount to the assumption of a duty over the traffic control at the intersection to the east
thereof. Indeed, while plaintiffs note that the Town had the “authority” to erect no U-turn signs
at the intersection, such is not, pursuant to New York law, the equivalent of to a duty to do so.
The Town offers case law directly on point in support of its motion, and the Plaintiffs offer none
in opposition. That the Town communicated with the County to address issues on the County
road, and acted with the County’s consent to erect these no parking signs on the County Road in
accord with the New York Vehicle & Traffic Law (“VTL”) in no way, as a matter of law, gives
rise to a legal duty to place these or other signs.
Nor does the Town Zoning Board’s conditional grant of a special use permit (Town Exhibit
“BB”) to the private winery located along the County Road, which condition required the winery
to provide limousine and bus drivers bringing attendees to the event with a “printed traffic route
that prohibited U-turns” on the County Road, create or reflect the assumption of a duty with regard
to governing traffic at the intersection itself. The Town’s Zoning Board, which uncontrovertibly
has no control over traffic on the County Road, was addressing a private event at a private business
at which a large number of attendees was anticipated. The Permit did not regulate traffic
independently (limousines and busses not coming from that event were not affected); it merely
mandated the provision of a map of a printed traffic route reflecting an event-specific prohibition
of such U-turns to vehicles leaving the event.
Collectively, the evidence submitted by the Plaintiffs in Opposition to the Motion fails to
establish that the Town had a legal duty over the County Road and is thus insufficient to raise a
triable issue of fact such as would require the denial of the Town’s motion. Ostroski v. Baldi, 61
3
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A.D.3d 1403, 1404, 877 N.Y.S.2d 546 (4th Dept. 2009).4 The Plaintiffs factual contentions, even
if taken as true, do not create material issues, and Plaintiffs offer no legal authority to contradict
the unequivocal authority submitted by the Town and, as such, the Town’s motion must be granted
in its entirety.
ARGUMENT
POINT ONE
THERE ARE NO TRIABLE QUESTIONS OF FACT CONCERNING THE LEGAL
DUTY OF CARE HEREIN
In the JMOL, the Plaintiffs argue that because the Town, after design and installation of
the traffic signal by the County on the County’s road, would maintain and/or repair the light fixture
if such was in disrepair presents an issue of fact as to whether the Town exercised “control” over
the intersection. The argument on its face is untenable. The County installed the flashing light in
place at the time of the accident herein “because it is a County Road” (Dresch, Town Exhibit “M”,
p. 106). Mr. Dresch testified that, thereafter, if the signal was in need of maintenance such would
be undertaken by the Town pursuant to contract (Town Exhibit “M”, pp. 106-107). Neither driver,
nor any other party alleges that the flashing light governing the intersection was out of repair or in
need of maintenance.
There is no factual or legal support for the contention by Plaintiffs that the Town’s
maintenance obligations as to the implement itself creates a legal duty to determine sufficiency of
the existing and/or future traffic devices. Plaintiffs offer no case law which would support such a
proposition.
4
It is not “callous, shameful, and wrong” (Tock Affirmation, ¶ 60) for the Town to assert as a matter of law and upon
applicable legal authority that it had no legal duty to control the intersection of the County and the Town Road.
Counsel’s comment in this regard is ad hominem and should not be countenanced by this Court.
4
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Indeed, the record unequivocally demonstrates that prior to the date of the subject accident,
the County determined, based upon its traffic studies, that a three-phase traffic light would be
installed at the subject intersection (Exhibit “M”, p. 153-154). That determination was singularly
made by the County based upon its studies, and it was the County’s research, design, and
installation of the light that followed this accident in 2015. The Plaintiffs do not dispute this. As
was the case with the signal in place on the accident date, after that light was installed, the Town
contractually agreed to maintain the fixture and keep it in a state of repair. Plaintiffs’ argument
that such a contractual maintenance obligation gives rise to a legal duty to determine and
implement traffic control devices at the intersection of the County and Town Roads is wrong.
There is no ambiguity in the law: The County is responsible for traffic control at the intersections
of county and town roads. VTL §1651; Kupferman v County of Nassau, 17 A.D.3d 638, 639, 794
N.Y.S.2d 100 (2nd Dept. 2005); Amato v. County of Erie, 247 A.D.2d 846, 669 N.Y.S.2d 104 (4th
Dept. 1998).
The Town’s liability for traffic control at an intersection of a county and town road arises
only if it ignores a directive from the County to install a traffic control device. VTL §1651;
Kupferman v. County of Nassau, 17 A.D.3d at 639. No such directive from the County to the Town
is present here. In fact, the County exclusively studied and, ultimately, determined to change the
traffic control signal at the subject intersection. The Town thus neither had, nor assumed, any legal
duty for such determination such as to give rise to liability herein.
The Plaintiffs also cite to §1652-b of the VTL in support of their argument, but that statute
is inapplicable to the facts of this case. Section 1652-b of the VTL contains a procedure by which
the Suffolk County Superintendent of Highways may erect and maintain traffic signs “in relation
to any highway road or street within a town or a village within such county” (except on state
5
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highways) if certain procedural steps are taken and agreements are reached between the parties.
Of course, this statute has absolutely no bearing on the County’s uncontroverted responsibility
over its own roads and highways.
Indeed, §1652-b specifically notes that “the power granted to the Suffolk County
Superintendent of Highways by this Section shall in no way diminish any power over roads granted
to him by law but shall be an addition to any such powers.” Section 1652-b thus enhances the
County’s authority to erect and maintain traffic signs and signals on any road in a town, but it does
not obligate the Town to do such on County roads. As such, Magliano v. Merckling, 88 A.D.2d
825, 472 N.Y.S.2d 419 (2nd Dept. 1984), cited by plaintiffs, is inapplicable. In Magliano, the Court
addressed whether the Town had complied with the procedural requirements of the statute such as
to transfer control over the traffic signal to the County. The case does not address the
uncontroverted obligation of the County control traffic at the intersections of county and town
roads and, in particular, at the subject intersection.
The Plaintiffs also cite to the affidavit of their proposed expert, Nicholas Bellizzi (Exhibit
“B” to the Tock affirmation in opposition), in support of this contention. In fact, Bellizzi’s
Affidavit does not support the Plaintiffs’ argument. At ¶ 45 of his Affidavit, Bellizzi concedes that
“the Town would not have had jurisdiction to install a directional signal on its own…” Indeed,
while Bellizzi opines that the Town “could and should have recommended” that the County change
the signal, nothing in his affidavit can be read to suggest an assertion on his part that the Town
was legally duty-bound to do so. 5
5
Notably, Bellizzi has no expertise in the law and, despite the presence of at least one legal citation in his Affidavit,
he is utterly unqualified to interpret or make arguments in support of legal propositions such as the existence or lack
of a legal duty. Belizzi’s affidavit is defective in several other respects, but most are not germane to the Court’s
determination of this Motion. For example, Bellizzi mistakenly, and without support from the record, draws the
conclusion that Pino, the limousine driver, was either in the process of or intending to make a “K-turn” (Bellizzi
Affidavit, ¶ 17). Neither Pino’s nor Romeo’s testimony, the only eye-witness testimony to this accident adduced in
this record, lends any credence to the notion that Pino was attempting to make a K-turn rather than a left and,
6
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Moreover, the Plaintiffs incorrectly allege that there are “indisputable facts” to show that
the Town exercised control over the intersection of County Road 48 and Depot Lane. Notably, the
Plaintiffs do not offer a single legal authority (case or statute) in this portion of the JMOL which
would support their claim that such “indisputable facts,” if they exist, are legally material.
Plaintiffs argue that the Town had and exercised “decision control.”6 Examples offered of such
“decision control” refer to discussions amongst Town Officials about the potential use of
roundabouts at various intersections on County Road 48, as well as the Town’s passage of a local
law to erect no parking signs on the road (but not at the intersection), as well as the Town’s law
enforcement activities on the road.
The erection of parking signs on the County Road does not, as noted previously, establish
the existence or assumption of a duty. See, Ostroski v Baldi, 61 A.D.3d 1403, 1404 (4th Dept.
2009), lv denied, 13 N.Y.3d 701 (2009) (evidence submitted by plaintiffs in opposition to the
motion establishing that the Town undertook actions that it had no legal obligation to perform by
erecting barriers at the bottom of the hill following the accident is insufficient to raise a triable
issue of fact whether the Town owed a duty to decedent at the time of the accident); Cain v
Pappalardo, 225 A.D.2d 1005, 1007, 639 N.Y.S.2d 570 (3rd Dept. 1996) (the placement of a “Stop
Ahead” sign by municipality on another municipality’s roadway is not an assumption of duty).
As to the Town’s law enforcement activity, Plaintiffs ignore the clear import of the Second
Department decision in Estate of Konstantatos, supra, which unequivocally held that the
ultimately, a U-turn. Indeed, Pino was in the process of making his left turn (Town Exhibit “C”, page 120) when he
was struck by the vehicle driven by Romeo. Indeed, Bellizzi mistakes the impossibility of a legal U-turn with a U-
turn that could be made at the intersection by a limousine, albeit illegally (for example, Pino driving his vehicle onto
the westbound right shoulder would constitute a U-turn, though such would have been illegal under the VTL’s
dimensional constraints). Bellizzi’s willful ignorance of the testimonial evidence and his failure to consider all
possibilities to be drawn from the evidence in favor of speculation as to what might have happened had the T-bone
collision not occurred lends no support the Plaintiff’s argument in opposition to the motion.
6
The plaintiffs do not offer an explanation as to what “decision control” means in the context of legal duty and/or the
assumption thereof. “Decision Control” is thus not an element of a legal duty and should be disregarded by the Court.
7
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enforcement of traffic regulations by a local traffic agency is not tantamount to the creation or
assumption of a duty on the part of that municipality for which it can be liable in tort when that
municipality neither owns, designs, maintains, controls, or repairs the roadway. See, Estate of
Konstantatos, 208 A.D.2d at 890. The assertion by Plaintiffs that the Town’s first responders were
part of the response to this accident is conceptually analogous, and likewise unavailing to Plaintiffs
(and likewise lacking in legal authority to support the contention).
Moreover, that the Town is within its authority (though it has no duty), with the County’s
consent, to install no parking signs in the vicinity of the Vineyard to the west of the intersection
does not raise a material issue of fact. This is because such authority, with the County’s permission,
is not the legal equivalent of the assumption of a duty, and Plaintiffs offer no legal authority to
support their contention to the contrary. Similarly, the fact that Town Officials had “discussions”
about roundabouts at various intersections on County Road 48 within the Town does not create a
legal duty to take action on the County Road. As with its other contentions on this point, the
Plaintiffs offer no legal support for their contention to the contrary.
Likewise, the Plaintiffs contention that the Town and County entered into an agreement for
the Towns maintenance of the proposed new light, which was to commence after the design and
installation of that light by the County, and which was based upon the County’s studies for the
need thereof, does not in any way suggest the legal assumption by the Town of the duty to make
the traffic control decisions that were the legal duty of the County to make. The fact that the Town
conducted an accident investigation with the New York State Police7 is not evidence of a legal
duty on the part of the Town for the design and construction of that roadway. Accident
investigation, for the same reasons that law enforcement of traffic on the roadway doesn’t, do not
7
Plaintiffs have not sued the State, though on their liability theory the State’s investigation of the accident would give
rise to a duty on its part to maintain and design the County roadway.
8
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suffice to create a legal duty or the assumption of one. See, Estate of Konstantatos, supra. Of
course, with respect to these contentions, the Plaintiffs likewise offer no legal support for their
argument.
Plaintiffs cite a few cases in the JMOL in opposition to the Town’s case law establishing
prima facie the absence of a legal duty. Three of these cases were cited by the Town in support of
its motion, and the Plaintiffs do not differentiate nor distinguish the holdings of those cases on the
facts or on the law such that would suggest they support, rather than contradict, Plaintiffs’
contentions.
Once of the cases cited by the Plaintiff in opposition that was not cited by the Town,
Lattanzi v. State of New York, 74 A.D.2d 378, 428 N.Y.S2d 331 (3rd Dept. 1980) does not support
the Plaintiffs’ argument as to the Towns’ alleged duty of care. In Lattanzi, the Third Department
held that the Defendants, State of New York, the Jones Beach State Parkway Authority, and the
Long Island State Park and Recreation Commission were joint tortfeasors under Public Authorities
Law §153-b, which is not applicable to this case. The accident in question in Lattanzi happened
on the Southern State Parkway, which was a roadway with concurrent jurisdiction as to the
defendants therein and did not involve a County or a Town road.8
The other cases cited by the Plaintiffs were all cited by the Town in support of its motion
for summary judgment and clearly support the Town’s argument that it has no legal duty with
regard to, and cannot be held responsible for the negligent design or maintenance of a roadway
that it does not own or control. Indeed, Plaintiffs’ reference to Ernest v. Red Creek Center School
District, 93 N.Y.2d 664, 675, 695 N.Y.S.2d 531 (1999) is curious, because the Court of Appeals
therein specifically held that a municipality will not be held responsible for negligent design or
8
Another case not cited by the Town, Magliano v. Merckling, supra, was addressed earlier in this Memorandum.
9
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maintenance of a highway that it does not own or control. Ernest v. Red Creek Center School
District, 93 N.Y.2d at 675. Moreover, the Court of Appeals specifically rejected the Plaintiffs’
claim therein that the Town’s “authority to create a crosswalk and hire a crossing guard” pursuant
to the VTL gave rise to the creation or assumption of a duty. This directly governs the instant
action, where the Town’s authority to undertake actions under the VTL does not establish an
affirmative duty of the town to maintain any county road. This Court of Appeals precedent thus
soundly negates any notion that the Town’s authority to place no parking signs (with the County’s
consent) on the County Road, and its similar authority to put other traffic regulating signs pursuant
to VTL §1660(a)(5), gives rise to a legal duty.
Likewise, the case of Deng v. Young, 163 A.D.3d 1469, 81 N.Y.S.3d 699 (4th Dept. 2018),
is also inapposite. The Deng case dealt specifically with a school district’s duty to prevent injury
to school children by its continued exercise of control and supervision of them in the event that
the release of a student poses a foreseeable risk of harm to the child. In Deng, a student was injured
while walking home from school. The Fourth Department in Deng did not consider any argument
that a town had a duty concerning a roadway that it did not own. On the facts and on the law,
therefore, the Deng case is inapplicable.
The final case cited by Plaintiffs, Estate of Konstantatos, supra, also cited by the Town in
support of its motion, rejected the Plaintiffs’ contentions that the County of Suffolk therein owed
a duty of care to Plaintiff’s decedent for an accident that occurred at the intersection of two State
roads. Likewise here, the law is clear: the County is responsible for the control and maintenance
of its roadway, not the Town, and the Plaintiffs have asserted no legal authority to contradict this
hornbook rule.9
9
It is to be noted that in Plaintiffs’ opposition papers, counsel also misstate facts, including the contention that the
Town “set in motion an effort to improve safety at the intersection by upgrading the traffic control devices.” (JMOL,
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The Plaintiffs have completely failed to rebut the Town’s prima facie showing entitlement
to judgment as a matter of law as to the absence of any legal duty to control, maintain, or repair
CR 48 and, as such, the motion should be granted in its entirety on this ground alone.
POINT TWO
ACTUAL NOTICE TO THE TOWN, THOUGH LACKING, DOES NOT CREATE
LIABILITY IN THE ABSENCE OF LEGAL DUTY
The second point in Plaintiffs’ Memorandum of Law in Opposition to the motion contends
that the Town had actual notice of the potential for an accident at the intersection based upon
alleged “frequent” unlawful U-turns. Plaintiffs note that the Town requested that the County
perform a study of the intersection for the “purpose of installing a traffic light.” (JMOL, p.11,
Town Exhibits “O” and “Q”), but wrongfully conclude from those requests that the Town “knew”
that the existing light was “inadequate” (MOL, p. 11). Plaintiffs fail to recognize that the point of
a study is to determine whether data supports action, and Mr. Dresch, the County witness, testified
at length as to the County’s process and ultimate determination concerning the signal as the result
of its studies (Town Exhibit “M”, throughout), noting that its data that dictates what, if any, change
is necessary for the traffic control.
Plaintiffs offer the affidavit of Town resident William Shipman (Exhibit “C” to Tock
affirmation) and other documents and testimony reflecting expressed constituent concerns about
the intersection. Many of these concerns involve vehicles attempting 3 point, or K-turns, which
turn was unequivocally not the type of turn being attempted by Pino on the date of this accident,
and therefore such do not establish nor raise an issue fact as to “notice” to the Town as to the action
page 8). It is clearly not the case that the Town “upgraded the traffic control devices”: the design and installation was
unequivocally done by the county based upon its traffic studies. As is clearly the case herein, the Town’s authority
and its efforts under that authority to address concerns that were articulated to it by its residents, is not tantamount to
the assumption of a legal duty with regard to the roadway it did not own, County Road 48.
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Pino took. Other of the complaints involved traffic congestion, parking, and acts of patrons of the
nearby winery.
Regardless, it is clear that, under New York law, the Town’s receipt of constituent
concerns, regardless of whether such were specific as to the actions complained of herein, and its
presentment of those concerns to the County do not reflect the existence or assumption of a legal
duty by the Town to make traffic control determinations at the intersection. See, Ossmer, 97
A.D.2d at 872 (the fact that the town joined with the county in requesting that the State Department
of Transportation reduce the speed limit on the county road pursuant to VTL §1622 did not make
the town liable for the condition of the county road). Indeed, the Plaintiffs do not offer a single
legal authority to support their contention that notice of constituent complaints as to a County Road
gives rise to a Town duty concerning that County Road.
Plaintiffs fail to demonstrate how the Town’s interaction with its residents,
communications to the County requesting studies of the roadway, and its law enforcement
activities on the roadway are a substitute for a finding of a legal duty over the road. The Plaintiffs’
contentions in this regard are thus of no moment on the question of the Town’s duty, which, as
demonstrated above, does not exist as a matter of law.
POINT THREE
THE TOWN DID NOT ASSUME A DUTY OF CARE BASED UPON THE COUNTY’S
INACTION
In Point Three of its Memorandum of Law in Opposition, the Plaintiffs attempt to revisit
their assumption of duty argument, and again premise their contentions on the Town’s contractual
agreement to maintain the flashing light at the intersection which was present on the date of the
accident. As has been definitively demonstrated, supra, the Town’s obligation to maintain the
flasher after the County designed and installed it did not, as a matter of law, give rise to a legal
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duty on the part of the town to maintain and repair the County’s Road. No party in this case
contends that the flasher was inoperable or in need of repair; it worked as designed at the time of
the accident. On this point, the plaintiffs offer the general proposition that the town is under a
nondelegable duty to maintain “it’s roads and highways” in a reasonably safe condition. (JMOL,
p. 16).
The Plaintiffs fail to recognize that control over “it’s roads” connotes very specifically the
roads that are under its control. For example, in Atkinson v. County of Oneida, 77 A.D.2d 257,
258, 432 N.Y.S.2d 970 (4th Dept. 1980), cited by Plaintiffs in opposition, the Court articulated the
proposition that it has long been established that “a governmental body, be it the state, a county,
or a municipality, is under a nondelegable duty to maintain its roads and highways in a reasonably
safe condition…” In Atkinson, the Court was addressing liability for an accident that occurred at
the intersection of two county roads, roads which “had been owned and maintained by the County
for over 40 years” Atkinson v. County of Oneida, 77 A.D.2d at 258. An accident at the intersection
of two county roads is factually and fundamentally distinct from the facts in the case at bar,
involving the intersection between a county and a town road. The Town has offered uncontroverted
legal authority for the proposition that it is the legal obligation of the County, and not the Town,
to maintain its roads and highways at such intersections. 10
The remaining cases cited by the Plaintiffs in support of this point likewise address the
general proposition as to liability of a municipal entity and/or the State for the control and
maintenance of that municipality’s and/or state’s own roadways. See, McDevitt v. State, 1 N.Y.2d
540, 154 N.Y.S.2d 874 (1956); (accident on a state highway invoking the States responsibility
10
The Atkinson Court went on to address the County’s alleged “failure in its duty in subsequent years to review its
plan and actions…” 77 A.D.2d at 258. From this proposition the Plaintiffs ask the Court to adjudicate the Town’s
potential liability for the County’s alleged delays and road study insufficiencies in the case at bar. Plaintiffs offer no
legal authority upon which this Court could rely to hold the Town accountable for the alleged failures of the County.
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over that highway); Tamm v. State of New York, 29 A.D.2d 601, 285 N.Y.S.2d 753 (3rd Dept.
1967), affd. 26 N.Y.2d 719 (1970) (liability of State based upon accident at intersection of two
State roadways); Beardsley v. State of New York, 57 A.D.2d 1061, 395 N.Y.S.2d 848 (4th Dept.
1977) (liability of State for accident which occurred on State roadway). Neither these cases, nor
any other legal authority offered by the Plaintiffs, support the proposition that the Town’s failure
to “urge the County to take action on its study” and provide “updated information about the
(alleged) growing danger from illegal U-turns” creates a duty under the law over a roadway the
Town did not own.11
POINT FOUR
THE TOWN’S AUTHORITY TO ERECT SIGNS UNDER THE VEHICLE AND
TRAFFIC LAW DOES NOT GIVE RISE TO A DUTY OF CARE
At point four of its Memorandum of Law, Plaintiffs argue that a duty should be imposed
upon the Town premised upon their failure to “take the uncomplicated step of adopting a local law
to establish a no U-turn law at the intersection” or to erect “no U-turn signs in the east bound lanes”
of the County road. Again, and as they have throughout their papers in opposition, the Plaintiffs
conflate the ability to take an action under the VTL with a duty to undertake that action. The Court
of Appeals has soundly rejected this argument. See, Ernest, supra.
Moreover, the Plaintiffs rely in this Point of their argument upon the Bellizzi affidavit,
though such reliance is misplaced. Bellizzi, in fact, acknowledges that the Town “would not have
had jurisdiction to install a directional signal on its own…” (JMOL, p. 19, Plaintiff Exhibit “B”
¶45). His opinions as to what the Town could have and/or should have done does not help to
11
Plaintiffs’ Counsel, in rather peculiar fashion, rely again here upon the affidavit of its Traffic Engineer, Belizzi.
Besides being utterly unqualified to offer “expert” testimony as to the county’s practice, Bellizzi’s opinion is of no
moment on the issue of the Town’s legal duty as a matter of law.
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enlighten the Court as to what the Town was legally obligated to do; certainly Bellizzi has no
expertise on the subject of legal duty. His affidavit on this point, as well as the others for which it
is offered in opposition to this motion, does not create an issue of fact warranting the denial of the
Town’s motion.
Finally, Plaintiffs point to the fact that the Town enacted a local law, §260-3.1, which
authorized the Town to install a no U-turn sign on Love Lane, which is a Town Road. The Town
Code does not require the installation of no U-turn signs on the County Road and no duty to do so
is created thereunder.
POINT FIVE
THERE ARE NO TRIABLE QU
Preview
FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ------------------------------------------------------------------------X SUZANNE SCHULMAN, AS ADMINISTRATRIX OF THE ESTATE OF BRITTNEY M. SCHULMAN, DECEASED, ALICIA M. ARUNDEL; OLGA LIPETS; MINDY GRABINA, AS Index No. 611214/15 ADMINISTRATRIX OF THE ESTATE OF AMY GRABINA, AND MINDY GRABINA, INDIVIDUALLY; STEVEN BARUCH, AS ADMINISTRATOR OF THE ESTATE OF LAUREN BARUCH, DECEASED AND STEVEN BARUCH, INDIVIDUALLY; JOELLE DIMONTE; MELISSA A. CRAI AND ARTHUR A. BELLI JR., AS PARENT AND NATURAL GUARDIAN OF STEPHANIE BELLI, DECEASED, AND AS THE ADMINISTRATOR OF THE ESTATE OF STEPHANIE BELLI, Plaintiffs, -against- ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO, ROMEO DIMON MARINE SERVICE, INC., STEVEN ROMEO, TOWN OF SOUTHOLD AND COUNTY OF SUFFOLK, CABOT COACH BUILDERS, INC., d/b/a ROYALE LIMOUSINE and “XYZ COMPANIES 1-5” name being fictitious but intended to be the remanufacturers, distributors and/or sellers of the 2007 Lincoln Town Car stretch limousine involved in the collision, Defendants. ------------------------------------------------------------------------X REPLY MEMORANDUM OF LAW VOLZ & VIGLIOTTA, PLLC Attorneys for Defendant, Town of Southold 280 Smithtown Blvd. Nesconset, New York 11767 (631) 366-2700 Of Counsel: David H. Arntsen, Esq. Joshua S. Shteierman, Esq. 1 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 TABLE OF CONTENTS TABLE OF AUTHORITIES …………………………………………………………………. i, ii PRELIMINARY STATEMENT …………………………………………………………………1 ARGUMENT……………………………………………………………………………………...4 POINT ONE THERE ARE NO TRIABLE QUESTIONS OF FACT CONCERNING THE LEGAL DUTY OF CARE HEREIN ……………………………………………...4 POINT TWO ACTUAL NOTICE TO THE TOWN, THOUGH LACKING, DOES NOT CREATE LIABILITY IN THE ABSENCE OF LEGAL DUTY ………..……….11 POINT THREE THE TOWN DID NOT ASSUME A DUTY OF CARE BASED UPON THE COUNTY’S INACTION………………………………………………………...12 POINT FOUR THE TOWN’S AUTHORITY TO ERECT SIGNS UNDER THE VEHICLE AND TRAFFIC LAW DOES NOT GIVE RISE TO A DUTY OF CARE ……………..14 POINT FIVE THERE ARE NO TRIABLE QUESTIONS OF FACT CONCERNING THE TOWN’S ABSENCE OF NEGLIGENCE AND PINO’S NEGLIGENCE AS A MATTER OF LAW ……………………………………………………………...15 CONCLUSION ………………………………………………………………………………….16 2 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 TABLE OF AUTHORITIES CASES Amato v. County of Erie, 247 A.D.2d 846, 669 N.Y.S.2d 1104 (4th Dept. 1998) …………………………………….5 Atkinson v. Oneida County, 77 A.D.2d 257, 432 N.Y.S.2d 970 (4th Dept. 1980) ……………………………………...13 Beardsley v. State of New York, 57 A.D.2d 1061, 395 N.Y.S.2d 848 (4th Dept. 1977) …………………………………….14 Cain v Pappalardo, 225 A.D.2d 1005, 639 N.Y.S.2d 570 (3rd Dept. 1996) …………………………………….7 Deng v. Young, 163 A.D.3d 1469, 81 N.Y.S.3d 699 (4th Dept. 2018) …………………………………….10 Ernest v. Red Creek Center School District, 93 N.Y.2d 664, 695 N.Y.S.2d 531 (1999) …………………………………………9, 10, 14 Estate of Konstantatos v. County of Suffolk, 208 A.D.2d 889, 618 N.Y.S.2d 90 (2nd Dept. 1994) ……………………………..2, 7, 8, 10 Kupferman v County of Nassau, 17 A.D.3d 638, 794 N.Y.S.2d 100 (2nd Dept. 2005) ……………………………………….5 Lattanzi v. State of New York, 74 A.D.2d 378, 428 N.Y.S.2d 331 (3rd Dept. 1980) ………………………………...……..9 Magliano v. Merckling, 88 A.D.2d 825, 472 N.Y.S.2d 419 (2nd Dept. 1984) ………………...……….………...6, 9 Maleski v Lenander, 38 A.D.3d 1192, 831 N.Y.S.2d 810 (4th Dept. 2007), lv denied, 9 N.Y.3d 803 (2007) …..16 McDevitt v. State, 1 N.Y.2d 540, 154 N.Y.S.2d 874 (1956).…………………………………………………13 Ossmer v. Bates, 97 A.D.2d 871, 469 N.Y.S.2d 273 (3rd Dept. 1983) ……………………………….1, 12, 15 Ostroski v. Baldi, 61 A.D.3d 1403, 877 N.Y.S.2d 546 (4th Dept. 2009), lv denied, 13 N.Y.3d 701 (2009) ……...……………………………………………………………………………...…3, 4, 7 i. 3 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 Pulka v Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393 (1988) ………………………………………………..15 Tamm v. State of New York, 29 A.D.2d 601, 285 N.Y.S.2d 753 (3rd Dept. 1967), affd. 26 N.Y.2d 719 (1970) …..13, 14 STATUTES NEW YORK VEHICLE AND TRAFFIC LAW §1651 ………………………………………..…5 NEW YORK STATE VEHICLE AND TRAFFIC LAW §1652-b …………………………….5, 6 NEW YORK STATE VEHICLE AND TRAFFIC LAW §1660(a)(5) ………………………..…10 NEW YORK STATE VEHICLE AND TRAFFIC LAW §1622 …………………………….….12 PUBLIC AUTHORITIES LAW §153-b ………………………………………………………….9 SOUTHOLD TOWN CODE §260-2 …………………………………………………………….15 SOUTHOLD TOWN CODE §260-3.1 …………………………………………………………..15 ii. 4 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 PRELIMINARY STATEMENT The Town of Southold (“the Town”) submits this Memorandum of Law in reply to the Plaintiffs’ Joint Memorandum of Law (“JMOL”) in opposition to the Town’s motion for summary judgment and dismissal of all claims against it in this case. Plaintiffs also submit the affirmations of counsel1, as well as the affidavits of a Town resident and a proposed expert.2 It is respectfully submitted to the court that the Plaintiffs collectively fail to establish, as a matter of law, that the Town herein had or assumed a legal duty with regard to maintenance and control of the County Road, CR 48, at its intersection with Depot Lane, a Town road, in the Town of Southold. The question as to a party’s legal duty is for the Court. In the absence of duty, there is no breach and without a breach there is no liability. Ossmer v. Bates, 97 A.D.2d 871, 469 N.Y.S.2d 273 (3rd Dept. 1983). Plaintiffs raise no issue of fact sufficient to rebut the Town’s showing of entitlement to judgment based on the absence of such a legal duty of the Town to maintain or control the County Road. Each and every contention of the Plaintiffs in opposition was anticipated and addressed in the Town’s motion in chief and was refuted on the facts and applicable law. Plaintiffs’ offer no legal authority to contradict the Town’s showing. The Plaintiffs point out that the Town, subject to an agreement with the County, was to repair the light fixture present at the time of the subject accident if repair was needed. The agreement, however, did not involve the design and installation of the traffic signal, which design 1 Each plaintiff’s counsel submitted an affirmation in opposition in which each adopted and incorporated by reference the “arguments, exhibits, and affidavits” of Plaintiffs Crai and DiMonte as set forth in their affirmations, joint memorandum of law and counterstatement of facts. Counsel for Plaintiff Grabina likewise joined in the Crai/DiMonte opposition, but nonetheless sets forth nearly identical contentions and argument (as well as case law improperly submitted in attorney’s affirmation) which appears to have been taken from the Crai/DiMonte papers. It is respectfully requested that the Court consider this Reply Memorandum as submitted in opposition to all of the opposition papers submitted by plaintiffs’ counsel and counsel for the codefendants who opposed the motion. 2 The Crai/DiMonte Memorandum of Law is jointly submitted on behalf of the Plaintiffs. No other Memorandum of Law was submitted in opposition to the Town’s motion. 1 5 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 and installation was undertaken by the County. (Dresch Transcript, Town Exhibit “M”, p. 106) 3. From this proposition the Plaintiffs ask the Court to infer a legal duty on the Town to itself determine how and with what traffic control devices traffic at the intersection should be controlled. Plaintiffs offer no factual or legal support for this proposition; in fact, all of the evidence before the Court and the case authorities relied upon by the Town contradict such an inference. Moreover, the Plaintiffs make no allegation in this case that the flashing signal in place on the date of this accident was in need of repair or maintenance or that the faulty operation of the light was a contributing cause of the accident. As such, Plaintiffs fail to raise an issue of fact on this ground sufficient defeat the motion. Plaintiffs allege that the Town was the “only police agency that patrolled the intersection, monitored the traffic, issue(d) summons’ for traffic violations, and responded to investigative traffic accidents…” (MOL in Opposition, ¶ 60) and that these law enforcement activities either created or reflected the assumption of a duty as to the control and maintenance of the County Road. The Town negated this contention as a matter of law, citing Estate of Konstantatos v. County of Suffolk 208 A.D.2d 889, 890, 618 N.Y.S.2d 90 (2nd Dept. 1994), in which the Court addressed and rejected this precise contention, holding that: “Plaintiff’s argument would render a municipality liable in tort for the consequences of any condition existing on a roadway which it neither owns, designs, maintains, controls or repairs, simply because it enforces traffic regulations there. Such a result would render meaningless the (County’s) statutory responsibility for maintenance of its roadways and the traffic control devices located thereon.” The Town’s diligent law enforcement efforts at the intersection do not give rise to a legal duty to maintain the County Road. 3 The same arrangement was in place for the traffic light installed after the subject accident-that light was also designed and installed by the County with maintenance and repair of the light to be performed as needed by the Town by contract. 2 6 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 Plaintiffs further allege that the Town erected no parking signs on CR 48 at a winery to the west of the intersection with the consent and the approval of the County and that this is tantamount to the assumption of a duty over the traffic control at the intersection to the east thereof. Indeed, while plaintiffs note that the Town had the “authority” to erect no U-turn signs at the intersection, such is not, pursuant to New York law, the equivalent of to a duty to do so. The Town offers case law directly on point in support of its motion, and the Plaintiffs offer none in opposition. That the Town communicated with the County to address issues on the County road, and acted with the County’s consent to erect these no parking signs on the County Road in accord with the New York Vehicle & Traffic Law (“VTL”) in no way, as a matter of law, gives rise to a legal duty to place these or other signs. Nor does the Town Zoning Board’s conditional grant of a special use permit (Town Exhibit “BB”) to the private winery located along the County Road, which condition required the winery to provide limousine and bus drivers bringing attendees to the event with a “printed traffic route that prohibited U-turns” on the County Road, create or reflect the assumption of a duty with regard to governing traffic at the intersection itself. The Town’s Zoning Board, which uncontrovertibly has no control over traffic on the County Road, was addressing a private event at a private business at which a large number of attendees was anticipated. The Permit did not regulate traffic independently (limousines and busses not coming from that event were not affected); it merely mandated the provision of a map of a printed traffic route reflecting an event-specific prohibition of such U-turns to vehicles leaving the event. Collectively, the evidence submitted by the Plaintiffs in Opposition to the Motion fails to establish that the Town had a legal duty over the County Road and is thus insufficient to raise a triable issue of fact such as would require the denial of the Town’s motion. Ostroski v. Baldi, 61 3 7 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 A.D.3d 1403, 1404, 877 N.Y.S.2d 546 (4th Dept. 2009).4 The Plaintiffs factual contentions, even if taken as true, do not create material issues, and Plaintiffs offer no legal authority to contradict the unequivocal authority submitted by the Town and, as such, the Town’s motion must be granted in its entirety. ARGUMENT POINT ONE THERE ARE NO TRIABLE QUESTIONS OF FACT CONCERNING THE LEGAL DUTY OF CARE HEREIN In the JMOL, the Plaintiffs argue that because the Town, after design and installation of the traffic signal by the County on the County’s road, would maintain and/or repair the light fixture if such was in disrepair presents an issue of fact as to whether the Town exercised “control” over the intersection. The argument on its face is untenable. The County installed the flashing light in place at the time of the accident herein “because it is a County Road” (Dresch, Town Exhibit “M”, p. 106). Mr. Dresch testified that, thereafter, if the signal was in need of maintenance such would be undertaken by the Town pursuant to contract (Town Exhibit “M”, pp. 106-107). Neither driver, nor any other party alleges that the flashing light governing the intersection was out of repair or in need of maintenance. There is no factual or legal support for the contention by Plaintiffs that the Town’s maintenance obligations as to the implement itself creates a legal duty to determine sufficiency of the existing and/or future traffic devices. Plaintiffs offer no case law which would support such a proposition. 4 It is not “callous, shameful, and wrong” (Tock Affirmation, ¶ 60) for the Town to assert as a matter of law and upon applicable legal authority that it had no legal duty to control the intersection of the County and the Town Road. Counsel’s comment in this regard is ad hominem and should not be countenanced by this Court. 4 8 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 Indeed, the record unequivocally demonstrates that prior to the date of the subject accident, the County determined, based upon its traffic studies, that a three-phase traffic light would be installed at the subject intersection (Exhibit “M”, p. 153-154). That determination was singularly made by the County based upon its studies, and it was the County’s research, design, and installation of the light that followed this accident in 2015. The Plaintiffs do not dispute this. As was the case with the signal in place on the accident date, after that light was installed, the Town contractually agreed to maintain the fixture and keep it in a state of repair. Plaintiffs’ argument that such a contractual maintenance obligation gives rise to a legal duty to determine and implement traffic control devices at the intersection of the County and Town Roads is wrong. There is no ambiguity in the law: The County is responsible for traffic control at the intersections of county and town roads. VTL §1651; Kupferman v County of Nassau, 17 A.D.3d 638, 639, 794 N.Y.S.2d 100 (2nd Dept. 2005); Amato v. County of Erie, 247 A.D.2d 846, 669 N.Y.S.2d 104 (4th Dept. 1998). The Town’s liability for traffic control at an intersection of a county and town road arises only if it ignores a directive from the County to install a traffic control device. VTL §1651; Kupferman v. County of Nassau, 17 A.D.3d at 639. No such directive from the County to the Town is present here. In fact, the County exclusively studied and, ultimately, determined to change the traffic control signal at the subject intersection. The Town thus neither had, nor assumed, any legal duty for such determination such as to give rise to liability herein. The Plaintiffs also cite to §1652-b of the VTL in support of their argument, but that statute is inapplicable to the facts of this case. Section 1652-b of the VTL contains a procedure by which the Suffolk County Superintendent of Highways may erect and maintain traffic signs “in relation to any highway road or street within a town or a village within such county” (except on state 5 9 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 highways) if certain procedural steps are taken and agreements are reached between the parties. Of course, this statute has absolutely no bearing on the County’s uncontroverted responsibility over its own roads and highways. Indeed, §1652-b specifically notes that “the power granted to the Suffolk County Superintendent of Highways by this Section shall in no way diminish any power over roads granted to him by law but shall be an addition to any such powers.” Section 1652-b thus enhances the County’s authority to erect and maintain traffic signs and signals on any road in a town, but it does not obligate the Town to do such on County roads. As such, Magliano v. Merckling, 88 A.D.2d 825, 472 N.Y.S.2d 419 (2nd Dept. 1984), cited by plaintiffs, is inapplicable. In Magliano, the Court addressed whether the Town had complied with the procedural requirements of the statute such as to transfer control over the traffic signal to the County. The case does not address the uncontroverted obligation of the County control traffic at the intersections of county and town roads and, in particular, at the subject intersection. The Plaintiffs also cite to the affidavit of their proposed expert, Nicholas Bellizzi (Exhibit “B” to the Tock affirmation in opposition), in support of this contention. In fact, Bellizzi’s Affidavit does not support the Plaintiffs’ argument. At ¶ 45 of his Affidavit, Bellizzi concedes that “the Town would not have had jurisdiction to install a directional signal on its own…” Indeed, while Bellizzi opines that the Town “could and should have recommended” that the County change the signal, nothing in his affidavit can be read to suggest an assertion on his part that the Town was legally duty-bound to do so. 5 5 Notably, Bellizzi has no expertise in the law and, despite the presence of at least one legal citation in his Affidavit, he is utterly unqualified to interpret or make arguments in support of legal propositions such as the existence or lack of a legal duty. Belizzi’s affidavit is defective in several other respects, but most are not germane to the Court’s determination of this Motion. For example, Bellizzi mistakenly, and without support from the record, draws the conclusion that Pino, the limousine driver, was either in the process of or intending to make a “K-turn” (Bellizzi Affidavit, ¶ 17). Neither Pino’s nor Romeo’s testimony, the only eye-witness testimony to this accident adduced in this record, lends any credence to the notion that Pino was attempting to make a K-turn rather than a left and, 6 10 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 Moreover, the Plaintiffs incorrectly allege that there are “indisputable facts” to show that the Town exercised control over the intersection of County Road 48 and Depot Lane. Notably, the Plaintiffs do not offer a single legal authority (case or statute) in this portion of the JMOL which would support their claim that such “indisputable facts,” if they exist, are legally material. Plaintiffs argue that the Town had and exercised “decision control.”6 Examples offered of such “decision control” refer to discussions amongst Town Officials about the potential use of roundabouts at various intersections on County Road 48, as well as the Town’s passage of a local law to erect no parking signs on the road (but not at the intersection), as well as the Town’s law enforcement activities on the road. The erection of parking signs on the County Road does not, as noted previously, establish the existence or assumption of a duty. See, Ostroski v Baldi, 61 A.D.3d 1403, 1404 (4th Dept. 2009), lv denied, 13 N.Y.3d 701 (2009) (evidence submitted by plaintiffs in opposition to the motion establishing that the Town undertook actions that it had no legal obligation to perform by erecting barriers at the bottom of the hill following the accident is insufficient to raise a triable issue of fact whether the Town owed a duty to decedent at the time of the accident); Cain v Pappalardo, 225 A.D.2d 1005, 1007, 639 N.Y.S.2d 570 (3rd Dept. 1996) (the placement of a “Stop Ahead” sign by municipality on another municipality’s roadway is not an assumption of duty). As to the Town’s law enforcement activity, Plaintiffs ignore the clear import of the Second Department decision in Estate of Konstantatos, supra, which unequivocally held that the ultimately, a U-turn. Indeed, Pino was in the process of making his left turn (Town Exhibit “C”, page 120) when he was struck by the vehicle driven by Romeo. Indeed, Bellizzi mistakes the impossibility of a legal U-turn with a U- turn that could be made at the intersection by a limousine, albeit illegally (for example, Pino driving his vehicle onto the westbound right shoulder would constitute a U-turn, though such would have been illegal under the VTL’s dimensional constraints). Bellizzi’s willful ignorance of the testimonial evidence and his failure to consider all possibilities to be drawn from the evidence in favor of speculation as to what might have happened had the T-bone collision not occurred lends no support the Plaintiff’s argument in opposition to the motion. 6 The plaintiffs do not offer an explanation as to what “decision control” means in the context of legal duty and/or the assumption thereof. “Decision Control” is thus not an element of a legal duty and should be disregarded by the Court. 7 11 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 enforcement of traffic regulations by a local traffic agency is not tantamount to the creation or assumption of a duty on the part of that municipality for which it can be liable in tort when that municipality neither owns, designs, maintains, controls, or repairs the roadway. See, Estate of Konstantatos, 208 A.D.2d at 890. The assertion by Plaintiffs that the Town’s first responders were part of the response to this accident is conceptually analogous, and likewise unavailing to Plaintiffs (and likewise lacking in legal authority to support the contention). Moreover, that the Town is within its authority (though it has no duty), with the County’s consent, to install no parking signs in the vicinity of the Vineyard to the west of the intersection does not raise a material issue of fact. This is because such authority, with the County’s permission, is not the legal equivalent of the assumption of a duty, and Plaintiffs offer no legal authority to support their contention to the contrary. Similarly, the fact that Town Officials had “discussions” about roundabouts at various intersections on County Road 48 within the Town does not create a legal duty to take action on the County Road. As with its other contentions on this point, the Plaintiffs offer no legal support for their contention to the contrary. Likewise, the Plaintiffs contention that the Town and County entered into an agreement for the Towns maintenance of the proposed new light, which was to commence after the design and installation of that light by the County, and which was based upon the County’s studies for the need thereof, does not in any way suggest the legal assumption by the Town of the duty to make the traffic control decisions that were the legal duty of the County to make. The fact that the Town conducted an accident investigation with the New York State Police7 is not evidence of a legal duty on the part of the Town for the design and construction of that roadway. Accident investigation, for the same reasons that law enforcement of traffic on the roadway doesn’t, do not 7 Plaintiffs have not sued the State, though on their liability theory the State’s investigation of the accident would give rise to a duty on its part to maintain and design the County roadway. 8 12 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 suffice to create a legal duty or the assumption of one. See, Estate of Konstantatos, supra. Of course, with respect to these contentions, the Plaintiffs likewise offer no legal support for their argument. Plaintiffs cite a few cases in the JMOL in opposition to the Town’s case law establishing prima facie the absence of a legal duty. Three of these cases were cited by the Town in support of its motion, and the Plaintiffs do not differentiate nor distinguish the holdings of those cases on the facts or on the law such that would suggest they support, rather than contradict, Plaintiffs’ contentions. Once of the cases cited by the Plaintiff in opposition that was not cited by the Town, Lattanzi v. State of New York, 74 A.D.2d 378, 428 N.Y.S2d 331 (3rd Dept. 1980) does not support the Plaintiffs’ argument as to the Towns’ alleged duty of care. In Lattanzi, the Third Department held that the Defendants, State of New York, the Jones Beach State Parkway Authority, and the Long Island State Park and Recreation Commission were joint tortfeasors under Public Authorities Law §153-b, which is not applicable to this case. The accident in question in Lattanzi happened on the Southern State Parkway, which was a roadway with concurrent jurisdiction as to the defendants therein and did not involve a County or a Town road.8 The other cases cited by the Plaintiffs were all cited by the Town in support of its motion for summary judgment and clearly support the Town’s argument that it has no legal duty with regard to, and cannot be held responsible for the negligent design or maintenance of a roadway that it does not own or control. Indeed, Plaintiffs’ reference to Ernest v. Red Creek Center School District, 93 N.Y.2d 664, 675, 695 N.Y.S.2d 531 (1999) is curious, because the Court of Appeals therein specifically held that a municipality will not be held responsible for negligent design or 8 Another case not cited by the Town, Magliano v. Merckling, supra, was addressed earlier in this Memorandum. 9 13 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 maintenance of a highway that it does not own or control. Ernest v. Red Creek Center School District, 93 N.Y.2d at 675. Moreover, the Court of Appeals specifically rejected the Plaintiffs’ claim therein that the Town’s “authority to create a crosswalk and hire a crossing guard” pursuant to the VTL gave rise to the creation or assumption of a duty. This directly governs the instant action, where the Town’s authority to undertake actions under the VTL does not establish an affirmative duty of the town to maintain any county road. This Court of Appeals precedent thus soundly negates any notion that the Town’s authority to place no parking signs (with the County’s consent) on the County Road, and its similar authority to put other traffic regulating signs pursuant to VTL §1660(a)(5), gives rise to a legal duty. Likewise, the case of Deng v. Young, 163 A.D.3d 1469, 81 N.Y.S.3d 699 (4th Dept. 2018), is also inapposite. The Deng case dealt specifically with a school district’s duty to prevent injury to school children by its continued exercise of control and supervision of them in the event that the release of a student poses a foreseeable risk of harm to the child. In Deng, a student was injured while walking home from school. The Fourth Department in Deng did not consider any argument that a town had a duty concerning a roadway that it did not own. On the facts and on the law, therefore, the Deng case is inapplicable. The final case cited by Plaintiffs, Estate of Konstantatos, supra, also cited by the Town in support of its motion, rejected the Plaintiffs’ contentions that the County of Suffolk therein owed a duty of care to Plaintiff’s decedent for an accident that occurred at the intersection of two State roads. Likewise here, the law is clear: the County is responsible for the control and maintenance of its roadway, not the Town, and the Plaintiffs have asserted no legal authority to contradict this hornbook rule.9 9 It is to be noted that in Plaintiffs’ opposition papers, counsel also misstate facts, including the contention that the Town “set in motion an effort to improve safety at the intersection by upgrading the traffic control devices.” (JMOL, 10 14 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 The Plaintiffs have completely failed to rebut the Town’s prima facie showing entitlement to judgment as a matter of law as to the absence of any legal duty to control, maintain, or repair CR 48 and, as such, the motion should be granted in its entirety on this ground alone. POINT TWO ACTUAL NOTICE TO THE TOWN, THOUGH LACKING, DOES NOT CREATE LIABILITY IN THE ABSENCE OF LEGAL DUTY The second point in Plaintiffs’ Memorandum of Law in Opposition to the motion contends that the Town had actual notice of the potential for an accident at the intersection based upon alleged “frequent” unlawful U-turns. Plaintiffs note that the Town requested that the County perform a study of the intersection for the “purpose of installing a traffic light.” (JMOL, p.11, Town Exhibits “O” and “Q”), but wrongfully conclude from those requests that the Town “knew” that the existing light was “inadequate” (MOL, p. 11). Plaintiffs fail to recognize that the point of a study is to determine whether data supports action, and Mr. Dresch, the County witness, testified at length as to the County’s process and ultimate determination concerning the signal as the result of its studies (Town Exhibit “M”, throughout), noting that its data that dictates what, if any, change is necessary for the traffic control. Plaintiffs offer the affidavit of Town resident William Shipman (Exhibit “C” to Tock affirmation) and other documents and testimony reflecting expressed constituent concerns about the intersection. Many of these concerns involve vehicles attempting 3 point, or K-turns, which turn was unequivocally not the type of turn being attempted by Pino on the date of this accident, and therefore such do not establish nor raise an issue fact as to “notice” to the Town as to the action page 8). It is clearly not the case that the Town “upgraded the traffic control devices”: the design and installation was unequivocally done by the county based upon its traffic studies. As is clearly the case herein, the Town’s authority and its efforts under that authority to address concerns that were articulated to it by its residents, is not tantamount to the assumption of a legal duty with regard to the roadway it did not own, County Road 48. 11 15 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 Pino took. Other of the complaints involved traffic congestion, parking, and acts of patrons of the nearby winery. Regardless, it is clear that, under New York law, the Town’s receipt of constituent concerns, regardless of whether such were specific as to the actions complained of herein, and its presentment of those concerns to the County do not reflect the existence or assumption of a legal duty by the Town to make traffic control determinations at the intersection. See, Ossmer, 97 A.D.2d at 872 (the fact that the town joined with the county in requesting that the State Department of Transportation reduce the speed limit on the county road pursuant to VTL §1622 did not make the town liable for the condition of the county road). Indeed, the Plaintiffs do not offer a single legal authority to support their contention that notice of constituent complaints as to a County Road gives rise to a Town duty concerning that County Road. Plaintiffs fail to demonstrate how the Town’s interaction with its residents, communications to the County requesting studies of the roadway, and its law enforcement activities on the roadway are a substitute for a finding of a legal duty over the road. The Plaintiffs’ contentions in this regard are thus of no moment on the question of the Town’s duty, which, as demonstrated above, does not exist as a matter of law. POINT THREE THE TOWN DID NOT ASSUME A DUTY OF CARE BASED UPON THE COUNTY’S INACTION In Point Three of its Memorandum of Law in Opposition, the Plaintiffs attempt to revisit their assumption of duty argument, and again premise their contentions on the Town’s contractual agreement to maintain the flashing light at the intersection which was present on the date of the accident. As has been definitively demonstrated, supra, the Town’s obligation to maintain the flasher after the County designed and installed it did not, as a matter of law, give rise to a legal 12 16 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 duty on the part of the town to maintain and repair the County’s Road. No party in this case contends that the flasher was inoperable or in need of repair; it worked as designed at the time of the accident. On this point, the plaintiffs offer the general proposition that the town is under a nondelegable duty to maintain “it’s roads and highways” in a reasonably safe condition. (JMOL, p. 16). The Plaintiffs fail to recognize that control over “it’s roads” connotes very specifically the roads that are under its control. For example, in Atkinson v. County of Oneida, 77 A.D.2d 257, 258, 432 N.Y.S.2d 970 (4th Dept. 1980), cited by Plaintiffs in opposition, the Court articulated the proposition that it has long been established that “a governmental body, be it the state, a county, or a municipality, is under a nondelegable duty to maintain its roads and highways in a reasonably safe condition…” In Atkinson, the Court was addressing liability for an accident that occurred at the intersection of two county roads, roads which “had been owned and maintained by the County for over 40 years” Atkinson v. County of Oneida, 77 A.D.2d at 258. An accident at the intersection of two county roads is factually and fundamentally distinct from the facts in the case at bar, involving the intersection between a county and a town road. The Town has offered uncontroverted legal authority for the proposition that it is the legal obligation of the County, and not the Town, to maintain its roads and highways at such intersections. 10 The remaining cases cited by the Plaintiffs in support of this point likewise address the general proposition as to liability of a municipal entity and/or the State for the control and maintenance of that municipality’s and/or state’s own roadways. See, McDevitt v. State, 1 N.Y.2d 540, 154 N.Y.S.2d 874 (1956); (accident on a state highway invoking the States responsibility 10 The Atkinson Court went on to address the County’s alleged “failure in its duty in subsequent years to review its plan and actions…” 77 A.D.2d at 258. From this proposition the Plaintiffs ask the Court to adjudicate the Town’s potential liability for the County’s alleged delays and road study insufficiencies in the case at bar. Plaintiffs offer no legal authority upon which this Court could rely to hold the Town accountable for the alleged failures of the County. 13 17 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 over that highway); Tamm v. State of New York, 29 A.D.2d 601, 285 N.Y.S.2d 753 (3rd Dept. 1967), affd. 26 N.Y.2d 719 (1970) (liability of State based upon accident at intersection of two State roadways); Beardsley v. State of New York, 57 A.D.2d 1061, 395 N.Y.S.2d 848 (4th Dept. 1977) (liability of State for accident which occurred on State roadway). Neither these cases, nor any other legal authority offered by the Plaintiffs, support the proposition that the Town’s failure to “urge the County to take action on its study” and provide “updated information about the (alleged) growing danger from illegal U-turns” creates a duty under the law over a roadway the Town did not own.11 POINT FOUR THE TOWN’S AUTHORITY TO ERECT SIGNS UNDER THE VEHICLE AND TRAFFIC LAW DOES NOT GIVE RISE TO A DUTY OF CARE At point four of its Memorandum of Law, Plaintiffs argue that a duty should be imposed upon the Town premised upon their failure to “take the uncomplicated step of adopting a local law to establish a no U-turn law at the intersection” or to erect “no U-turn signs in the east bound lanes” of the County road. Again, and as they have throughout their papers in opposition, the Plaintiffs conflate the ability to take an action under the VTL with a duty to undertake that action. The Court of Appeals has soundly rejected this argument. See, Ernest, supra. Moreover, the Plaintiffs rely in this Point of their argument upon the Bellizzi affidavit, though such reliance is misplaced. Bellizzi, in fact, acknowledges that the Town “would not have had jurisdiction to install a directional signal on its own…” (JMOL, p. 19, Plaintiff Exhibit “B” ¶45). His opinions as to what the Town could have and/or should have done does not help to 11 Plaintiffs’ Counsel, in rather peculiar fashion, rely again here upon the affidavit of its Traffic Engineer, Belizzi. Besides being utterly unqualified to offer “expert” testimony as to the county’s practice, Bellizzi’s opinion is of no moment on the issue of the Town’s legal duty as a matter of law. 14 18 of 21 FILED: SUFFOLK COUNTY CLERK 12/13/2022 03:52 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1251 RECEIVED NYSCEF: 12/13/2022 enlighten the Court as to what the Town was legally obligated to do; certainly Bellizzi has no expertise on the subject of legal duty. His affidavit on this point, as well as the others for which it is offered in opposition to this motion, does not create an issue of fact warranting the denial of the Town’s motion. Finally, Plaintiffs point to the fact that the Town enacted a local law, §260-3.1, which authorized the Town to install a no U-turn sign on Love Lane, which is a Town Road. The Town Code does not require the installation of no U-turn signs on the County Road and no duty to do so is created thereunder. POINT FIVE THERE ARE NO TRIABLE QU