DiCupe v. City of New York , 562 N.Y.S.2d 457 ( 1990 )

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), entered June 14, 1988, which granted the motion of the defendant City of New York for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs to the respondent City of New York, for reasons stated by Justice Hutcherson at the Supreme Court.

Additionally, we note that contrary to the plaintiffs’ contention, the issue of whether the defendant City of New York was entitled to summary judgment on the basis of qualified immunity pursuant to Weiss v Fote (7 NY2d 579) was raised in a timely fashion before the Supreme Court. Further, we find that the plaintiffs failed to present proof raising a triable issue of fact concerning whether the design of the roadway where the injured plaintiff’s accident occurred was made without adequate study or lacked a reasonable basis (see, Weiss v Fote, supra, at 589). Thompson, J. P., Lawrence, Fiber and Ritter, JJ., concur.