Opinion Summary: Ribaudo v. Delaney Construction Corporation et al., No. 502288 (App. Div. 3d Dept. Oct. 18, 2007)

Factual and Procedural Background

Defendant Delaney Construction Corporation was contracted by the Town of Queensbury to perform a sewer renovation project along State Route 9. On April 30, 2004, a sinkhole developed along the curb on the northbound side of Route 9 where Delaney had been working. The work area had been designated a construction zone with advance warning signs at 1,500 feet, 1,000 feet and 500 feet intervals. Robert Weisgerber, the Delaney superintendent in charge of the project, also placed a "lane shift" sign and additional warning barrels and cones at the sinkhole site. Weisgerber contacted a concrete company, which filled the sinkhole with "flowable fill" at approximately 6:15 A.M. the next morning; Weisgerber and another worker smoothed the fill and left the warning signs, cones and barrels in place, expecting the fill to cure within two hours.

Around 7:00 A.M., plaintiff (Ribaudo) was riding his bicycle northbound on Route 9. Aware of the warning barrels and cones, he rode around the barrels and between the cones and into the wet flowable fill, sustaining injuries. Plaintiff commenced this negligence action, alleging defendants failed to erect proper barriers and adequately warn highway users. Defendants moved for summary judgment, arguing that plaintiff's actions were the sole proximate cause of his injuries. Supreme Court (Krogmann, J.) denied defendants' motion, finding a triable issue as to whether the warnings and barriers were sufficient. Defendants appealed. The Appellate Division reversed, granted summary judgment to defendants and dismissed the complaint.

Legal Issues Presented

1. Whether defendants made a prima facie showing entitling them to summary judgment by demonstrating that they provided adequate warnings and barriers and that plaintiff's own conduct (riding around the barrels and cones) was the proximate cause of his injuries.
2. Whether plaintiff raised a triable issue of fact as to the sufficiency or adequacy of the warning signs and barriers such that summary judgment should be denied.
3. Whether plaintiff's admission that he saw and ignored the traffic-control devices and his violation of the Vehicle and Traffic Law preclude recovery.

Arguments of the Parties

Appellants (Defendants) — Delaney Construction Corporation and Town of Queensbury

• Submitted the deposition testimony and an affidavit of Robert Weisgerber stating that the warnings, cones and barrels were placed in conformance with the New York State Manual of Uniform Traffic Control Devices and generally accepted industry standards and practices to warn and divert traffic (citing 17 NYCRR 300.3[h][1][iv]; 292.5[a]).
• Argued that plaintiff's own conduct (riding around visible warning barrels and cones and into the protected area) was the sole proximate cause of his injuries and thus they were entitled to summary judgment.
• Pointed to photographic evidence depicting the protected areas and the warning devices in place.

Respondent (Plaintiff) — Charles Ribaudo

• Plaintiff's written opposition consisted of an attorney's affirmation; the record included plaintiff's admission that he saw the warning barrels and cones but rode around them into the wet fill.
• No substantive challenge to the adequacy of the warnings or barricades was supported by an expert affidavit or other evidentiary material in opposition to the summary judgment motion, according to the opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Redcross v State of New York, 241 AD2d 787, 790, lv denied 91 NY2d 801	That the traffic laws apply to persons riding bicycles upon a roadway.	The court relied on Redcross to justify treating plaintiff's conduct under Vehicle and Traffic Law rules applicable to bicyclists when assessing contributory fault and proximate causation.
Alvarez v Prospect Hosp., 68 NY2d 320, 324	Standard for summary judgment: initial burden on movant to make a prima facie showing entitling it to judgment as a matter of law and then the shifting of the burden to the nonmoving party.	The court applied Alvarez to conclude defendants made a prima facie showing and that the burden then shifted to plaintiff to raise a triable issue of fact.
JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384	Affirmation/authority supporting the Alvarez standard (cited as accord).	Cited as supporting authority for applying the summary judgment standard articulated in Alvarez.
Macht v J.S. Cinemas, Inc., 18 AD3d 1102, 1103	Standard that evidence should be viewed in a light most favorable to the nonmoving party on summary judgment.	The court noted it viewed the evidence in the light most favorable to plaintiff but nonetheless held plaintiff failed to meet his burden to raise a triable issue.
Hendrickson v City of Kingston, 291 AD2d 709, 710, appeal dismissed and lv denied 98 NY2d 662	Attorney's affirmation alone is insufficient to raise a triable issue in opposition to summary judgment.	The court relied on Hendrickson to find plaintiff's counsel's affirmation inadequate to create a triable issue regarding the adequacy of warnings and barricades.
Morrison v Flintosh, 163 AD2d 646, 647	Same principle as Hendrickson regarding insufficiency of attorney affirmations to defeat summary judgment.	Cited to support the conclusion that plaintiff's submissions did not raise a substantive challenge to defendants' showing.
Hearn v State of New York, 157 AD2d 883, 885, lv denied 75 NY2d 710	That a municipality is not the insurer of the safety of its roads and that liability requires that the municipality's negligence be the proximate cause of the accident.	The court reiterated this principle to emphasize that plaintiff's violation of the Vehicle and Traffic Law and his admission of ignoring the posted signs undermined any claim that defendants' conduct was the proximate cause; thus no liability attached.

Court's Reasoning and Analysis

The Appellate Division began by examining the evidence defendants proffered in support of their motion for summary judgment. Defendants presented the deposition and an affidavit of Robert Weisgerber stating that the advance signs, lane-shift sign, barrels and cones were placed in conformity with the New York State Manual of Uniform Traffic Control Devices and accepted industry standards (and referenced 17 NYCRR 300.3[h][1][iv]; 292.5[a]). Photographs depicting the protected area and the traffic-control devices were part of defendants' proof. Plaintiff admitted he saw the warning barrels and cones and deliberately rode around them into the area containing wet flowable fill.

Applying the summary judgment standard from Alvarez (and accord JMD Holding Corp.), the court concluded that defendants made a prima facie showing entitling them to judgment as a matter of law. That shifted the burden to plaintiff to produce admissible evidence raising a triable issue of fact as to the adequacy of the warnings and barriers.

On the record before the court, plaintiff's only opposition consisted of an attorney's affirmation and his prior admission that he had seen the warnings and disregarded them. Citing Hendrickson and Morrison, the court held that an attorney's affirmation, standing alone, was insufficient to raise a triable issue. Because plaintiff offered no expert affidavit or other substantive evidentiary challenge to the sufficiency or adequacy of the warnings and barricades, the court found no genuine issue of material fact.

The court further considered plaintiff's violation of the Vehicle and Traffic Law (applicable to bicyclists, per Redcross) and his admission of ignoring the posted devices, concluding that plaintiff's conduct was culpable and that there was no showing that defendants' maintenance of the road or their traffic control measures were the proximate cause of the accident. The court invoked the principle from Hearn that a municipality is not an insurer of roadway safety and that liability requires the municipality's negligence to be the proximate cause.

Because no admissible evidence rebutted defendants' prima facie showing, the court reversed Supreme Court's order denying summary judgment and instead granted defendants' motion.

Holding and Implications

ORDER REVERSED; MOTION GRANTED; SUMMARY JUDGMENT AWARDED TO DEFENDANTS; COMPLAINT DISMISSED.

Direct effects and immediate consequences:

• The Appellate Division reversed the lower court's denial of defendants' motion for summary judgment.
• Summary judgment was entered for defendants Delaney Construction Corporation and the Town of Queensbury, the complaint was dismissed, and costs were awarded to defendants.

Broader implications:

The opinion does not announce or discuss any new legal precedent beyond applying established summary judgment standards and existing authorities concerning the sufficiency of evidentiary submissions in opposition to summary judgment (e.g., the insufficiency of an attorney's affirmation). The court's decision emphasizes (1) the movant's ability to establish entitlement to summary judgment by showing compliance with accepted traffic-control standards and (2) the nonmoving party's obligation to submit admissible, substantive evidence (such as an expert affidavit or other competent proof) to create a triable issue. No new legal rule was articulated in this opinion.