Estate of Hamzavi v. Dewberry-Goodkind, Inc.

24 A.D.3d 184, 805 N.Y.S.2d 350

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 2005
• Status: Published

Opinion

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered January 18, 2005, which, in an action for personal injuries and wrongful death against an engineering firm for negligent design and installation of a highway guide rail, granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs claim that defendant failed to design a proper guide rail at the location of plaintiffs decedent’s accident was properly dismissed for lack of a substantial basis to believe that the guide rail was designed by defendant (CPLR 3212 [i]). Nor does it avail plaintiff to claim that the guide rail did not conform to section 10.01.04 of the State Highway Design Manual in effect at the time of the design and installation of the subject guide rail absent evidence to support a substantial belief that defendant was under a duty to provide a guide rail specifically designed in conformity with that provision. There is no support in the record for plaintiffs conclusory assertion that defendant could have selected a different, properly designed guide rail. Concur—Andrias, J.P., Sullivan, Williams, Gonzalez and Catterson, JJ.