Attorneys for Plaintiff: Paul J. Edelstein, Esq. The
Edelsteins, Faegenburg & Brown, LLP.
Attorneys for Defendant(Movant): Sheila L. Gomez, Esq.
Zachary W. Carter, Corporation Counsel.
J. Kerrigan, J.
following papers numbered 1 to 10 read on this motion by
defendant, The City of New York, for summary judgment.
of Motion-Affirmation-Exhibits 1-4
in Opposition-Exhibits 5-7
the foregoing papers it is ordered that the motion is decided
branch of the motion by the City for dismissal of the
complaint against the New York City Department of
Transportation, New York City Department of Environmental
Protection and New York City Department of Parks and
Recreation is granted, there appearing no opposition to this
branch of the motion. Since they are not distinct entities
but merely departments, or agencies, of the City they are not
remaining branch of the motion by the City for summary
judgment dismissing the complaint and all cross-claims
against it is denied.
allegedly sustained injuries in a single-vehicle automobile
accident when defendant Buzzeo lost control of the vehicle he
was operating and in which plaintiff was a passenger and went
off the roadway and struck a tree on the westbound side of
the Belt Parkway between the Springfield Boulevard overpass
and the off ramp to the Farmers Boulevard exit in Queens
County on July 17, 2011. Plaintiff alleges that the City was
negligent in failing to establish and maintain a reasonably
safe "clear zone" on the shoulder of the roadway at
the subject location for vehicles driving onto the shoulder,
as required pursuant to established guidelines for highway
design, by failing to remove the tree that the vehicle
struck, in spite of the fact that it had actual knowledge
that the tree constituted a hazardous condition, by failing
to install guardrails despite having actual notice that
vehicles were leaving the road and striking the tree at the
subject location, in failing to implement a plan to control
the problem of speeding vehicles, to address design defects
at that location, which included the absence of a clear zone,
and in failing to install warning and speed limit signs and
City moves for summary judgment upon the grounds that the
clear zone recovery concept is not a basis upon which a legal
duty of the City may be measured, that even if liability
against the City may be premised upon a failure on its part
to establish or maintain a safe clear zone, the subject tree
was not within the clear zone, and the City did not have
actual or constructive notice that the subject tree
constituted a hazardous condition.
documentary and demonstrative evidence on this record, which
includes diagrams and photographs, shows that the Belt
Parkway westbound at the subject location has three lanes of
traffic and a wide grassy median to the right of the right
lane populated by trees and light poles at various distances
from the roadway, including the subject tree. The beginning
of an exit lane marked by a broken line begins several feet
before the subject tree but does not expand to form an exit
lane until just after the tree. Thus, a vehicle would be past
the tree before turning into the exit lane. The accident
investigation showed that Buzzeo's vehicle left the right
lane of traffic, mounted the median, traveled across the
grass and struck the tree. Moreover, the roadway at and
before the subject tree, ...