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Kleinman v. Buzzeo

Supreme Court, Queens County

March 30, 2017

Jason Kleinman, Plaintiff,
v.
Scott Buzzeo, The City of New York, The New York City Department of Transportation, New York City Department of Environmental Protection and New York City Department of Parks and Recreation, Defendants.

          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.

          Kevin J. Kerrigan, J.

         The following papers numbered 1 to 10 read on this motion by defendant, The City of New York, for summary judgment.

         Papers Numbered

         Notice of Motion-Affirmation-Exhibits 1-4

         Affirmation in Opposition-Exhibits 5-7

         Reply-Exhibits 8-10

         Upon the foregoing papers it is ordered that the motion is decided as follows:

         That 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 cognizable parties.

         The remaining branch of the motion by the City for summary judgment dismissing the complaint and all cross-claims against it is denied.

         Plaintiff 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 pavement markings.

         The 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.

         The 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, ...


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