Carrillo v. County of Rockland , 782 N.Y.S.2d 668 ( 2004 )

In an action, inter alia, to recover damages for wrongful death, the defendant County of Rockland appeals from so much of an order of the Supreme Court, Rockland County (Nelson, J.), entered October 22, 2003, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiffs decedent was operating his motor vehicle on Washington Street in the Village of Tappan in Rockland County when he lost control and the vehicle left the road and struck a tree. The plaintiff’s claim against the defendant County of Rockland was based, inter alia, on the County’s failure to replace a guardrail which had been removed from the area several years earlier.

A municipality has a duty to maintain its roads and highways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271, 283 [1986]; Finn v Town of Southampton, 289 AD2d 285 [2001]). This duty extends to furnishing safe guardrails (see Lattanzi v State of New York, 53 NY2d 1045 [1981]; Galvin v State of New York, 245 AD2d 418 [1997]). Pursuant to the qualified immunity doctrine, however, “liability for injury arising out of the operation of a duly executed highway safety plan may only be predicated on proof that the plan either was evolved without adequate study or lacked a reasonable basis” (Weiss v Fote, 7 NY2d 579, 589 [1960]; see Friedman v State of New York, supra; Alexander v Eldred, 63 NY2d 460, 466 [1984]; Galvin v State of New York, supra). Under the circumstances of this case, there are questions of fact as to whether the County’s decision to not replace the guardrail was based upon an adequate study (see Scheemaker v State of New York, 70 NY2d 985 [1988]; Sideris v Town of Huntington, 207 AD2d 538 [1994]; Bounauito v Floyd School Dist., 203 AD2d 225 [1994]).

The appellant’s remaining contention is without merit. Santucci, J.P., Luciano, Schmidt and Rivera, JJ., concur.