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Cohen v. Macaya

Supreme Court, Kings County

March 23, 2018

Linda Cohen, Plaintiff,

          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


         Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

         Papers Numbered

         Defendants' Notice of Motion with Accompanying Affidavits and Exhibits 1

         Plaintiff's Affirmation in Opposition with Accompanying Affidavits and Exhibits 2...

         Defendants' Reply Affirmation 3

         This 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.

         Plaintiff 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.

         Plaintiff 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 injuries.

         The 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.

         In 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.

         The 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 ...

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