Attorney for Plaintiff Sanders, Sanders, Block, Woycik,
Veiner & Grossman, P.C.
Attorney for Defendants Zachary W. Carter Corporation Counsel
of the City of New York
KATHERINE A. LEVINE, J.
as required by CPLR 2219(a), of the papers considered in the
review of this motion:
Notice of Motion with Accompanying Affidavits and Exhibits 1
Affirmation in Opposition with Accompanying Affidavits and
Reply Affirmation 3
case raises the issue of whether, following the Court of
Appeals' decision in Torturro v. City of NY, 28
N.Y.3d 469 (2016), the City of New York ("City") is
immune from liability when, in the midst of conducting a
safety study of a roadway in a public park, a pedestrian is
struck and injured by a passing bicyclist.
Linda Cohen ("Cohen" or "plaintiff") was
injured on November 3, 2011, when she was struck by Santos
Macaya ("Macaya" or "bicyclist"), who was
riding his bicycle in the designated bicycle lane on the West
Drive of Prospect Park, at the intersection of Southwest Lake
Drive and Well House Drive ("subject location").
She testified at her 50-h hearing and deposition that she had
no recollection of the incident. According to Macaya's
deposition testimony, plaintiff was at first walking in the
pedestrian lane, but "within a split second, " his
right shoulder made contact with plaintiff's back in the
bicycle lane and her body was on the ground in front of him.
Macaya further testified that the location was"fast down
hill." Less than two weeks after Cohen was struck, the
NYC Department of Transportation ("DOT") performed
immediate remedial measures; placing safety barrels,
upgrading the crosswalks to high visibility, and trimming the
bushes at the subject location. Further design changes to the
West Drive were implemented in May 2012.
claims that the City was negligent in the design and
maintenance of the roadway in Prospect Park, and for failing
to conduct proper safety studies and implement simple
remedial measures despite nine previous incidents on the West
Drive, which purportedly gave the City actual notice of the
dangerous condition on the roadway. Plaintiff also claims
that the City's negligence was the proximate cause of her
City moves for summary judgment dismissing the complaint
pursuant to CPLR § 3211 and/or § 3212 on the ground
that it is immune from liability, citing to O'Brien
v. City of New York, et. al., 231 A.D.2d 698 (2d Dept.
1996), and Quigley v. Goldfine and Village of Garden
City, 276 A.D.2d 681 (2d Dept. 2000), because it was in
the midst of a study of the subject roadway at the time of
the incident involving plaintiff.
August 2011, the defendants, City, the NYC Department of
Parks and Recreation ("Parks Department) and the DOT
formed a joint Task Force with the Prospect Park Alliance
("Task Force") to study how to increase safety on
the West Drive for pedestrians, bicyclists and motorists (the
"study"). According to the deposition testimony of
Keith Bray ("Bray"), the Borough Commissioner of
the DOT, the Task Force was formed in response to an incident
on the West Drive in June 2011, where a pedestrian was hit
head on by a bicyclist as she was crossing the roadway. The
Task Force held meetings in September and October of 2011,
where it discussed "priority concerns and key
issues" on the West Drive with possible strategies and
solutions, such as having two pedestrian paths on the left
side; two bicycle lanes on the right, one slow and the other
fast, separated by a buffer; and proposing signs that say
"Slow pedestrian traffic proceed with caution."
Compiling a list of accidents on the West Drive was also
discussed. Bray further testified that up to the time of the
incident, he had not discussed the problems on the West Drive
with highway or civil engineers, traffic safety experts, or
other outside consultants.
standard of liability to be imposed upon the City depends on
the nature of its act or omission which allegedly caused the
injury. Such acts or omissions are characterized as either
"government" or "proprietary" functions.
Acts "undertaken for the protection and safety of the
public pursuant to the general police powers" are
considered "governmental functions." Turturro v
City of New York, 28 N.Y.3d 469, 479 (2016);
Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425
(2013); Heeran v Long Is. Power Auth. (LIPA), 141
A.D.3d 561, 563 (2d Dept. 2016). Examples of government
functions include "police and fire protections,
oversight of juvenile delinquents, issuance of building
permits or certificates of occupancy, certifying compliance
with fire safety codes... and traffic regulations."
Connolly v Long Is. Power Auth., 2018 NY Slip Op
01148, 2018 NY LEXIS 244, *17 (2018). The "governmental
function immunity defense" shields a municipality from
liability for discretionary actions taken during the
performance of these functions. Turturr ...