DECISION ORDER
ORDERED that the order is affirmed, with costs.
Contrary to the appellant's contention, it was not entitled to summary judgment based upon the doctrine of qualified immunity. The decision to install an asphalt berm on the right side of the subject roadway, without adding additional drainage, was not the "product of a deliberative decision making process of the type afforded immunity from judicial interference" ( Boyd v. Trent, 262 A.D.2d 260 [2d Dept., June 1, 1999]; see, Holmes v. City of Elmira, 251 A.D.2d 844; Appelbaum v. County of Sullivan, 222 A.D.2d 987; Bounauito v. Floyd School Dist., 203 A.D.2d 225; Merchant v. Town of Halfmoon, 194 A.D.2d 1031).
Additionally, the Supreme Court properly found that issues of fact exist regarding whether the appellant's alleged negligent design and construction of the subject roadway was a proximate cause of the accident ( see, Gayle v. City of New York, 92 N.Y.2d 936).
Finally, the appellant's contention that it is entitled to summary judgment dismissing the complaint based upon the "doctrine of governmental immunity" is not properly before this court because it was raised for the first time in the appellant's reply papers ( see, Turkish Airlines v. American Airlines, 249 A.D.2d 463).
RITTER, J.P., FRIEDMANN, FEUERSTEIN, and SCHMIDT, JJ., concur.