Leonard v City of New York

[*1] Leonard v City of New York 2013 NY Slip Op 52170(U) Decided on October 29, 2013 Supreme Court, Kings County Schmidt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 29, 2013
Supreme Court, Kings County

Nathan Wesley Leonard, Plaintiff,

against

The City of New York, et al., Defendants.



2244/10



Plaintiff (Leonard) Attorney: Burns & Harris, 233 Broadway, Suite 900, New York, NY 10007

Plaintiff (Brady) Attorney: Robert Pasarelli, Esq., 1 John Street, Suite 206, Babylon, NY 11702-2939

Defendant (Daidone) Attorney: Nicoletti, Gonson, Spinner & Owen, LLP, 555 Fifth Avenue, 8th Floor, New York, NY 10017

Defendant (Welsbach) Attorney: London Fisher, LLP, 59 Maiden Lane, NY 10038

David I. Schmidt, J.

The following papers numbered 1 to 21 read herein:Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1 - 9

Opposing Affidavits (Affirmations)10 - 16

Reply Affidavits (Affirmations)17 - 20 [*2]

Other Papers Transcript dated May 29, 201321

Upon the foregoing papers, motion sequence numbers 8, 9, 10 and 11 are consolidated for disposition. Defendant Welsbach Electric Corp. (Welsbach) moves for an order: (1) pursuant to CPLR 3212, granting it summary judgment dismissing and severing the second amended verified complaint of plaintiff Nathan Wesley Leonard against it; and (2) pursuant to CPLR 3212, severing and dismissing each cross claim and any other cause of action asserted against it (motion sequence number 8). Defendant Welsbach makes a separate motion for an order: (1) pursuant to 22 NYCRR § 202.21(e), vacating the note of issue and striking the case from the trial calendar; (2) pursuant to CPLR 3124, compelling plaintiff to provide all outstanding discovery and compelling all parties to respond to its combined discovery demands on or before a date certain; and (3) pursuant to CPLR 3124, compelling all parties to appear for examination before trial in accordance with its notice dated January 12, 2012 (motion sequence number 9). Daidone Electric, Inc. (Daidone), moves for as order, pursuant to CPLR 3212, granting it summary judgment dismissing all claims and cross claims against it (motion sequence number 10). Defendant City of New York (the City) moves for an order: (1) pursuant to CPLR 3212 dismissing the complaint and all cross claims against it or, in the alternative (2) pursuant to CPLR 3212, granting summary judgment on its cross claims against Daidone (motion sequence number 11).

Facts and Procedural Background

On January 27, 2010, plaintiff commenced this action against the City and Roberto B. Brady seeking to recover damages for injuries sustained by him as the result of a motor vehicle accident that occurred on June 18, 2009. At approximately 9:30 P.M. on that day, plaintiff was struck by a vehicle operated by Mr. Brady while he was crossing the intersection of Atlantic Avenue and Court Street in Brooklyn (the Intersection). On October 18, 2010, plaintiff filed a supplemental summons and complaint adding Daidone as a defendant. On August 29, 2011, plaintiff filed a second supplemental summons and complaint adding Welsbach as a defendant.

Plaintiff claims that each of the defendants was negligent in its ownership, operation, maintenance, management, design, control and repair of the public roadway and the traffic signals located at the Intersection.

Plaintiff's Testimony at his 50-H Hearing and at his Deposition

Plaintiff testified that prior to the accident, he had been walking home from the YMCA on Atlantic Avenue. He left the gym, walked to northeast corner of Court Street, crossed Court Street to the northwest corner, and then turned left to cross Atlantic Avenue. Plaintiff further testified that when he began to cross Atlantic Avenue, he had a pedestrian "Walk" signal, he was looking straight ahead and he did not observe whether traffic was moving to the east or west on Atlantic Avenue. He was in the middle of the cross walk when he was struck by the vehicle driven by Mr. Brady. Plaintiff, who lived [*3]in the area and was familiar with the Intersection, also testified that he had never observed any issues with the traffic or pedestrian signals.

Mr. Brady's Deposition

Mr. Brady testified that he was driving home from work, on Atlantic Avenue, heading towards the Gowanus/Brooklyn-Queens Expressway. He was traveling at approximately 20 miles per hour, in the right lane, as he approached Court Street. Mr. Brady further testified that he had a green light and that he did not see plaintiff until approximately one second before his vehicle struck him; when he first saw plaintiff, plaintiff was looking down. Mr. Brady hit the brakes and held the horn down. After he struck plaintiff, the rear doors of his vehicle were in the crosswalk and the front of the vehicle had passed through the crosswalk. Mr. Brady also testified that he was not aware that any of the traffic signals at the Intersection were malfunctioning.

Daidone's Deposition

Andrew Gallo, a General Foreman, testified that Daidone was responsible for the repair and maintenance of all traffic signals in Brooklyn at the time of plaintiff's accident. Its contractual obligation included ensuring that the controller and traffic control systems at intersections were in proper working order; the controller operates the lights, sequencing, traffic signals and pedestrian signals. As part of its services, Daidone would perform yearly preventive maintenance and make repairs when the New York City Department of Transportation (DOT) advised Daidone that it was necessay. When Daidone responded to an issue, it would only check the lights to determine if there was a conflict with the timing as determined by DOT engineers; Daidone had no input with regard to setting the timing.

Mr. Gallo further testified that on June 9, 2009, a complaint was received with regard to the controller at the Intersection. A Daidone mechanic responded and noted that the light was operating properly. To make this determination, the mechanic would observe all signals from the computer and from his own visual inspection. Mr. Gallo also noted that if there was a conflict in the signals, the traffic light would flash amber for the main street, red for the cross street and the pedestrian light would not work. Daidone was not contacted again with regard to a problem at the Intersection before plaintiff's accident.

Mr. Gallo also explained that at the Intersection, there are five three-level vehicle signals (red, amber and green) and two five-level vehicle signals (red, amber, green and an amber and green turn arrow). There are also eight pedestrian signals. The "Walk" signal showed a person walking in white light and the "Don't Walk" showed a flashing red hand that turned into a steady red signal. Mr. Gallo further testified that the traffic lights at the Intersection were modified in 2010; the plot plans used on June 18, 2009 were not the same plans used after the modification.

The City's Deposition

Abraham Lopez, an employee of DOT Litigation Service, testified on behalf of the City. He identified the plot plan that was in effect at the Intersection in 2009. Mr. Lopez [*4]also produced the Traffic Maintenance Log created by Daidone, which showed the complaints made with regard to Intersection. One complaint, made on April 30, 2009, indicated that the controller was not functioning properly; a Daidone employee found no problem. A complaint made on May 17, 2009 indicated that a visor was missing; the part was replaced. Three complaints were made while Welsbach was installing the new controller on June 9, 2009. The last complaint received before plaintiff's accident, made on June 9, 2009, was discussed above.

The Affidavit of Plaintiff's Expert

In opposition to the pending motions, plaintiff relies, in part, upon an affidavit submitted by Robert T. Hintersteiner, P.E., an engineer. After listing the documents that he reviewed and advising the court that he Googled the accident site and made an onsite investigation on January 11, 2012, Mr. Hintersteiner alleges that his review indicates that a Traffic Study of the Intersection was conducted by DOT on January 22, 2004 to determine the need for a left turn signal.[FN1] Mr. Hintersteiner alleges that the study showed that a shared left turn was needed. He goes on to note that an exclusive left turn was provided, although an additional study should have been conducted to address this specific issue. He also notes that the study revealed that there had been only one accident at the Intersection during a three-year period between August 1998 and July 2001; it did not determine if there were any vehicle/pedestrian accidents.

The traffic signal phasing and timing were changed on November 9, 2004. As is relevant herein, the timing allowed for the green arrow permitting a left turn from westbound Atlantic Avenue onto southbound Court Street at the same time as the "Walk" signal for the west approach from which plaintiff entered the Intersection. The study that was conducted did not address the issue of this phasing. Mr. Hintersteiner also contends that the controller was reprogrammed to bypass the built in protocols for the safety barrier line that separated the major street, Atlantic Avenue, and the side street, Court Street. In this regard, Mr. Hintersteiner alleges that the industry standard for the manufacture of traffic signal computerized controllers and conflict monitors is to restrict this scenario of conflicting phasing operations. He contends that the National Electrical Manufacturers Association (NEMA) prohibits the operation of major street phases at the same time as side street phases. He also notes that after the new phasing operation was implemented, during the two-year period between June 2007 and June 2009, there were seven pedestrian accidents. Mr. Hintersteiner therefore opines that DOT did not conduct a thorough traffic study of the Intersection in order to adequately determine the pedestrian and traffic volume prior to making the phasing changes, despite the fact that a request or [*5]complaint was filed with DOT to study the Intersection, reference #CK03-1302.[FN2] Mr. Hintersteiner further avers that DOT again changed the traffic phasing and sequencing on January 12, 2010.

Mr. Hintersteiner thus concludes, with a reasonable degree of engineering certainty, that the timing and sequencing of the traffic and pedestrian signals at the Intersection presented a dangerous condition for motorists and pedestrians in that it permitted conflicting vehicle and pedestrian movements, and that the subject accident was a foreseeable consequence of that danger. He further opines that DOT was responsible for the subject accident when it conducted an incomplete and inadequate traffic study because it did not count the vehicle traffic and the pedestrian traffic crossing the Intersection at the same period, it did not use the Highway Capacity Manual and NEMA standards to analyze and evaluate the phasing operations and it improperly reprogrammed the traffic control signals to allow westbound traffic to make a left turn onto Atlantic Avenue at the same time that it allowed pedestrians to cross the west approach of Atlantic Avenue. In making its determination, Mr. Hintersteiner also avers that DOT failed to take into account accident history for the entire Intersection from August 1998 to July 2001.

Summary Judgment

It is well established that summary judgment may be granted only when it is clear that no triable issues of fact exist (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The party moving for summary judgment "bears the initial burden of making a prima facie showing of its entitlement to judgment as a matter of law" (Holtz v Niagara Mohawk Power, 147 AD2d 857, 858 [1989]). It is equally well settled that on such a motion, the facts must be viewed in the light most favorable to the non-moving party (see e.g. Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]).

Once such a showing has been established, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez, 68 NY2d at 324, citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). " [O]ne opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient'" (Amatulli v Delhi Constr., 77 NY2d 525, 533 [1991], quoting Zuckerman, 49 NY2d at 562). Further, "the motion should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Scott v Long Is. Power Auth., 294 AD2d 348, 348 [2002], citing Dolitsky v Bay Isle Oil Co., 111 AD2d 366 [1985]). Thus, [*6]the court is not to determine credibility, but whether a factual issue exists (Capelin Assoc. v Globe Mfg., 34 NY2d 338 [1973]).

Turning to the merits, " [t]he elements of a cause of action in negligence are (1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof'" (Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981], quoting Rodriguez v Budget Rent-A-Car Sys., 44 AD3d 216, 221 [2007]; accord Solomon v New York, 66 NY2d 1026 [1985]). Thus, "[i]t is well established that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff" (Pulka v Edelman, 40 NY2d 781, 782 [1976], citing Palsgraf v Long Is. R. R. Co., 248 NY 339, 342 [1928]). "The mere fact that an accident occurs does not mean that a defendant is liable unless the plaintiff can show how the defendant's breach of some duty caused or contributed to the plaintiff's mishap" (Braithwaite v Equitable Life Assur. Socy., 232 AD2d 352, 353 [1996], citing Bernstein v City of New York, 69 NY2d 1020 [1987]; Ingersoll v Liberty Bank, 278 NY 1 [1938]; DiGelormo v Weil, 260 NY 192 [1932]). Stated differently, "[i]t is a cardinal rule that a defendant may not be cast in damages merely because of the happening of an accident. It must be proven that the accident occurred because of the negligence of the one sought to be charged" (Shkoditch v One Hundred & Fifty William St., 17 AD2d 168, 169 [1962], affd 16 NY2d 609 [1965]). It must also be recognized that "[u]nlike foreseeability and causation, which are issues generally and more suitably entrusted to fact finder adjudication, the definition of the existence and scope of an alleged tortfeasor's duty is usually a legal, policy-laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration" (Palka v Servicemaster Mgt. Servs., 83 NY2d 579, 585 [1994]).

It is equally well established that a defendant establishes its entitlement to judgment as a matter of law by demonstrating that it did not create or have actual or constructive notice of the alleged hazard which proximately caused the injury (see e.g. Waheed v Valley Stream Cent. High Sch. Dist., 54 AD3d 1028, 1029 [2008], citing Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Baxter v Jackson Terrace Assoc., LLC, 43 AD3d 968 [2007]).

Welsbach's Motion for Summary Judgment

Welsbach's Contentions

In support of its motion, Welsbach relies upon the affidavit of Elizabeth Lawrence, a Project Manager, who alleges that she is responsible for maintaining work records and conducting research when Welsbach is involved in litigation. She is also in charge of scheduling work, ordering materials, billing, tracking work and interacting with DOT. Ms. Lawrence asserts that Welsbach was not a party to a traffic maintenance contract with the City on the date of plaintiff's accident and had not had any such contract with the City since May 31, 2001. Ms. Lawrence accordingly contends that Welsbach did not have any obligation to maintain, repair or inspect any traffic signals in Kings County at the time that plaintiff was injured. [*7]

Ms. Lawrence further explains that Welsbach entered into an agreement with the City concerning the removal of electro-mechanical controllers and the installation of ASTC controllers during the period commencing on January 14, 2008 through March 14, 2010.[FN3] Pursuant to this contract, Welsbach performed an upgrade to the controller at the Intersection on May 7, 2009, 43 days prior to the date of plaintiff's accident. After the installation, Welsbach performed a voltage test, which completed its duties under its contract. Thereafter, Welsbach received no complaints about the controller. Welsbach also asserts that it had no obligation, contractual or otherwise, to maintain the subject controller, since its contract with the City so states. Accordingly, Welsbach did not create any condition that led to plaintiff's accident. In this regard, Welsbach further avers that Daidone admitted, during its deposition, that Daidone was responsible for ensuring that the controller and traffic control system were in proper working order.

Welsbach further argues that it is entitled to summary judgment as a matter of law on the ground that it owed no duty in tort to members of the public. Welsbach also avers that it did not receive notification of any problem after it installed the controller.

Finally, Welsbach asserts that the City's claim for contribution and indemnity must fail, since its contract provides that: "The Contractor shall defend at its own expense, indemnify and hold the City harmless from any and all claims or judgments for damages . . . and from costs and expenses to which the City may be subjected or which it may suffer or incur allegedly arising out of or in connection with any operations of the Contractor and/or its subcontractors . . ."

(Welsbach's Contract, chap II, art 5, para E, p D-7). Applying the language of this provision, Welsbach argues that since it did not receive notice of any problems with the controller after its installation, plaintiff's accident did not "aris[e] out of or in connection with" the performance of any work done by Welsbach.

Plaintiff's Contentions

In opposition, plaintiff summarizes the parties' deposition testimony and the affidavit submitted by Ms. Lawrence. Plaintiff also relies upon that portion of the contract entered into between Welsbach and DOT that provides that: "[T]he Contractor shall promptly repair, replace, restore or rebuild, as the Commissioner may deem necessary, any finished work in which defects of materials or workmanship may appear or to which damage may occur because of such [*8]defects, during the one year period subsequent to the date of Final Acceptance, except where other periods of maintenance and guaranty are provided for."

(Welsbach's Contract, Art 18, Sec D). Pursuant to paragraph B of Article 18 of its contract, the City retained one percent of the contract price as security for Welsbach's faithful performance, which would be released five days after the expiration of one year from the date of completion and acceptance or within five days after the expiration of the guaranty period, after certification by the Commissioner.

Plaintiff goes on to argue that Welsbach fails to set forth any evidence that it properly installed the ASTC controller at the Intersection, and argues that once the installation was done, its work was complete because it no longer had any responsibilities with respect to the traffic signals. Plaintiff contends that this assertion is belied by the above quoted language pertaining to Welsbach's one year guaranty. More specifically, plaintiff contends that Welsbach submits no evidence of Final Acceptance or that the work was certified by the Commissioner as having been faithfully performed. Thus, since Welsbach submits no expert affidavit to establish that the controller was properly installed, its motion for summary judgment should be denied.

Plaintiff further contends that the fact that Welsbach installed the ASTC controller 43 days before plaintiff's accident does not relieve it from liability where it can be determined that its installation was not properly done and lead to the improper operation of the traffic signals at the Intersection. Plaintiff further argues that it is well settled that the failure to properly perform duties set forth in a contract subjects a service contractor to liability to those injured as a result.

Welsbach's Reply

In reply, Welsbach argues that plaintiff's contention that Welsbach cannot prove that its work was properly done because there is a one-year guaranty contained in its contract with the City is without merit, since it is undisputed that at no time after the installation of the ASTC controller on May 7, 2009 did Welsbach receive notice of any problem with the installation. Welsbach emphasizes that this contention is supported by Daidone, the contractor who was responsible for the maintenance of the traffic signals in Brooklyn at the time. In addition, Welsbach reiterates its assertion that it had no contract with the City to maintain, repair and/or inspect traffic signals in Brooklyn at the time of plaintiff's accident and had not been a party to such contract since May of 2001. Welsbach again states that it owed no duty to plaintiff, Daidone, Mr. Brady or any other member of the general public.[FN4]

[*9]Negligence on the Part of Welsbach

As a threshold issue, it is first noted that Daidone does not oppose that portion of Welsbach's motion seeking summary judgment on the issue of liability, since it concedes that it was responsible for the repair and maintenance of traffic control signals in Brooklyn at the time that the subject accident occurred. Plaintiff points to no provisions of Welsbach's contract that refutes this admission.

The court further finds that summary judgment dismissing all claims and counterclaims asserted against Welsbach must be granted, since Welsbach makes a prima facie showing that its installation of a new ASTC at the Intersection on May 7, 2009 did not cause or contribute to the cause of plaintiff's accident. In this regard, plaintiff offers no evidence to rebut Welsbach's showing that the new controller was properly installed because there were no complaints made in the 43 days between the installation and plaintiff's accident. Similarly, plaintiff offers no evidence that Welsbach performed any other work on the traffic signals in the Intersection during that 43 day period. In addition, Welsbach makes a prima facie showing that it did not have an obligation to maintain, repair, design or inspect the traffic control signals in the Intersection at the time of the subject accident. Welsbach is therefore entitled to summary judgment dismissing all claims asserted against it (see generally DiVona v Wahlfeld, 35 AD3d 527 [2006] [the court erred in denying summary judgment dismissing the complaint against the electrical contractor who established that they were not responsible for determining the placement of traffic signals at the intersection, which was the sole responsibility of the County of Suffolk, and plaintiffs failed to raise a triable issue of fact as to the responsibility of either the contractor or the Town to determine the placement of traffic signals]; Goldfelder v Herman Miller, Inc., 176 AD2d 440 [1991] [defendant should have been granted summary judgment under circumstances where it conceded that at the time of the accident, it was under contract to supply and install furniture in plaintiff's office, but plaintiff did not controvert the documentary evidence that established that defendant had neither delivered any goods nor commenced any work as of the date of the subject accident]; Caban v Bonoco Constr., 172 AD2d 377 [1991] [plaintiff's complaint and all cross claims and counterclaims asserted against defendants were properly dismissed where no material triable issues of fact existed concerning whether any of defendants' employees caused the fatal explosion and fire and plaintiff failed to come forward with evidence that any of defendants' employees were doing construction work on or near the site of the explosion]; Lomnitz v Woodbury, 81 AD2d 828, 829 [1981] [plaintiffs did not [*10]show by any evidentiary facts that the subject ditch or any conduct of the town caused or contributed to the accident in any way]).

Welsbach's Liability to Plaintiff

In the alternative, even assuming, for sake of argument, that Welsbach did have a contract with the City to maintain and repair the subject traffic control device, it did not owe any duty to plaintiff, as a member of the general public. It is a "general rule that a contractual obligation ordinarily will not give rise to tort liability in favor of a third party" (Davilmar v City of New York, 7 AD3d 559, 559-561 [2004], citing Torres v City of New York, 298 AD2d 318 [2002]; Ray v Hertz, 271 AD2d 374 [2000]; Powell v City of New York, 250 AD2d 409 [1998]; Francois v New York City, 161 AD2d 319 [1990]). In this regard, it is well settled that " a duty directly assumed to benefit one person does not extend to third parties who are not intended beneficiaries of the undertaking to perform, even if it is foreseeable that someone else might be damaged by the nonfeasance'" (Francois, 161 AD2d at 320, quoting Thompson v City of New York, 157 AD2d 634, 635 [1990]; citing Oathout v Johnson, 88 AD2d 1010 [1982]). In support of this holding, the Court of Appeals explained that: "Under our decisional law a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party (see Eaves Brooks, 76 NY2d 220, 226 [1990]). Seventy-four years ago, in (H.R. Moch Co. v Rensselaer Water Co., 247 NY 160 [1928]), Chief Judge Cardozo stated that imposing liability under such circumstances could render the contracting parties liable in tort to an indefinite number of potential beneficiaries' (id. at 168). As a matter of policy, we have generally declined to impose liability to that degree."

(Espinal v Melville Snow Contrs., 98 NY2d 136, 138-139 [2002]).

In a case specifically involving a malfunctioning traffic signal that Welsbach had been hired by the City to maintain, the Appellate Division, Second Department, nonetheless held that liability may be imposed under certain circumstances: "[T]he malfunctioning traffic signal may constitute a proximate cause of the accident (see Powell v City of New York, supra, 250 AD2d at 410). Further, it is well settled that there are exceptions to the general rule that a contractual obligation will generally not give rise to tort liability in favor of a third party. These exceptions are (1) where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, "launche[s] a force or instrument of harm" . . . ; (2) where the plaintiff detrimentally relies on [*11]the continued performance of the contracting party's duties . . . and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely' (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002] [citations omitted]). The negligent repair of a traffic light may fall within the first exception for launching a force or instrument of harm (see Ruiz v Peralta, 306 AD2d 150 [2003]; Ludwig v Welsbach Elec., 305 AD2d 124 [2003])."

(Davilmar, 7 AD3d at 559-561).

In this case, however, Welsbach makes a prima facie showing that it was not retained to repair or maintain traffic or pedestrian signals in Brooklyn at the time of plaintiff's accident. Similarly, it makes a prima facie showing that it properly installed the ATSC controller, since it demonstrated that there were no complaints made to the City with regard to the functioning of the controller for the 43 days between the date of its installation and the date of plaintiff's accident and that it did no work at the Intersection thereafter. Plaintiff fails to refute this showing. Accordingly, in the absence of any evidence to support a conclusion that Welsbach negligently repaired the traffic and pedestrian signals at issue herein, Welsbach cannot be said to have "launched a force or instrument of harm," and therefore cannot be found liable to plaintiff.

Welsbach's Warranty to the City

The court also declines to find that Welsbach's warranty, as discussed above, serves to impose upon it a duty to repair and/or maintain the controller for one year after it was installed. In so holding, the court notes that the subject warranty is specifically limited to "any finished work in which defects of materials or workmanship may appear or to which damage may occur because of such defects." It is well settled that: "The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent (see Slatt v Slatt, 64 NY2d 966, 967 [1985], rearg denied 65 NY2d 785 [1985]). The best evidence of what parties to a written agreement intend is what they say in their writing' (Slamow v Del Col, 79 NY2d 1016, 1018 [1992]). Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms (see e.g. R/S Assocs. v New York Job Dev. Auth., 98 NY2d 29, 32 [2002], rearg denied 98 NY2d 693 [2002]; W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 162 [1990])."

(Greenfield v Philles Records, 98 NY2d 562, 569 [2002]).

The above quoted indemnification provision is triggered only in the event of a [*12]finding of negligence on the part of Welsbach, its employees or its subcontractors. As was discussed above, plaintiff offers no evidence to rebut Welsbach's showing that the traffic and pedestrian signals were not in need of repair after the installation of the new controller and prior to plaintiff's accident. Thus, plaintiff does not allege, nor does he proffer any evidence to establish that Welsbach improperly installed the controller. Thus, the warranty will not be construed to impose any obligation to repair or maintain the traffic signal on Welsbach.[FN5]

The City's Claim for Indemnity/Contribution

" [I]t is elementary that the right to contractual indemnification depends upon the specific language of the contract"' (Kader v City of NY, Hous. Preserv. & Dev., 16 AD3d 461, 463 [2005], quoting Gillmore v Duke/Fluor Daniel, 221 AD2d 938, 939 [1995]). "Contribution is generally available as a remedy when "two or more tort-feasors share in responsibility for an injury, in violation of duties they respectively owe[] to the injured person"' (Trump Vill. Section 3 v New York State Hous. Fin. Agency, 307 AD2d 891, 896 [2003], quoting Garrett v Holiday Inns, 58 NY2d 253, 258 [1983], quoting Smith v Sapienza, 52 NY2d 82, 87 [1981]).

Accordingly, since the court dismissed the causes of action premised upon negligence on the part of Welsbach, Welsbach is entitled to summary judgment dismissing the City's claims for contractual indemnification and/or contribution (see Stone v Williams, 64 NY2d 639, 642 [1984]; Tapinekis v Rivington House Health Care Facility, 17 AD3d 572, 573-574 [2005]; Moss v McDonald's, 34 AD3d 656, 657 [2006]).

Notice

Finally, even assuming that Welsbach had a duty to repair and maintain the traffic signals at the Intersection, and having found that it did not create any alleged dangerous condition, as discussed above, it cannot be held liable to plaintiff because it had no notice of any alleged malfunction (see Piacquadio v Recine Realty, 84 NY2d 967 [1994]; Simmons v Metropolitan Life Intersection. Co., 84 NY2d 972 [1994]).

Welsbach's Motion to Strike Plaintiff's Note of Issue

Having granted Welsbach's motion for summary judgment dismissing the complaint and all other claims asserted against it, its motion to strike plaintiff's note of [*13]issue is denied as moot.

Daidone's Motion for Summary Judgment

Daidone's Contentions

In support of its motion, Daidone asserts that plaintiff cannot make out a prima facie case against it, i.e., plaintiff cannot show a duty owing to him, breach of that duty and/or proximate cause for the injuries that he sustained. In this regard, Daidone contends that plaintiff provides no evidence that the pedestrian or traffic signals were malfunctioning at the time of the subject accident. Daidone also argues, as did Welsbach, that even if the pedestrian and traffic signal at the Intersection were malfunctioning, Daidone did not have any notice of a defective condition and that as a contractor for the City, it did not owe a duty of care to plaintiff, as a member of the general public.

Daidone also argues that although it had a contract with the City for the maintenance and repair of traffic lights and pedestrian signals in Brooklyn, it did not program the controller, which regulates the timing. Rather, the timing of the traffic lights was determined by DOT. More specifically, the "plot plan" device that was used at the Intersection was issued by the City, who also made its own modifications to the timing device.

Daidone goes on to explain that if a traffic signal was not operating properly, Daidone would receive a notification from DOT via a computer and printer. As part of its contract, logs were created by the computer, which was capable of generating"Traffic Maintenance Logs," which list all complaints and repair activity at a specified location. The Log indicates that six complaints were made with regard to the Intersection during the two month period before plaintiff's accident; these complaints were discussed above. Daidone elaborates on the complaint received on June 9, 2009, when a citizen complained that the green turn arrow was not timed properly, stating that a Daidone repair technician arrived at the site, observed the Intersection for five cycles and noted that the ASTC controller was lit and operating properly on the pre-timed program in accordance with the DOT design. Daidone did not return to the Intersection between June 9, 2009 and the date of plaintiff's accident.

Daidone further asserts that in his affidavit, Mr. Hintersteiner evaluated the circumstances surrounding plaintiff's accident and provided an assessment of responsibility. Daidone contends that Mr. Hintersteiner did not identify any mechanical defect or malfunction of the traffic lights or pedestrian signals at the time of the subject accident, nor did he implicate Daidone's work in any manner. Instead, the only issue that he identified concerned the timing of the lights, which was determined by DOT.

The City's Contentions

In its opposition papers, the City alleges that it takes no position as to that portion of Daidone's motion seeking summary judgment dismissing plaintiff's complaint. The City contends, however, that in the event that any part of plaintiff's complaint is sustained, that branch of Daidone's motion seeking to dismiss the cross claims against it must be [*14]denied. In this regard, the City alleges, as is more fully addressed in its motion for summary judgment, that so long as the intention of one party to indemnify another is clear and unambiguous pursuant to the terms of the subject contract, indemnification is appropriate.

Plaintiff's Contentions

In opposition, plaintiff argues that Daidone fails to meet its burden of establishing that the subject Intersection was not dangerous. Plaintiff further avers, in reliance upon his expert's affidavit, that he makes a prima facie showing that the Intersection is dangerous. More specifically, Mr. Hintersteiner contends that the City improperly altered the pre-set timing of the controller.[FN6] Plaintiff also contends that although Daidone argues that it was not responsible for setting the timing of the traffic lights, its contract with the City provides that Daidone is responsible for the repair and readjustment of all connections, timings and settings required for accurate and efficient operation of equipment. Thus, it must be concluded that Daidone was, in fact, responsible for insuring that the traffic lights were properly timed. In this regard, the fact that plaintiff alleges that he had a "Walk" signal when he crossed the street and Mr. Brady alleges that he had a green light should be sufficient to raise an issue of fact with regard to whether the timing was properly set.

In addition, plaintiff alleges that the June 9, 2009 complaint concerning the timing of the traffic light provides notice of the dangerous condition to both the City and Daidone. Plaintiff contends that the fact that the timing was improper was obvious to the complaining citizen. Moreover, Mr. Hintersteiner is of the opinion that the problem with the timing should have been obvious to anyone observing the traffic light.

Finally, plaintiff argues that Daidone's assertion that it does not owe a duty of care to plaintiff, as a third-party beneficiary of its contract with the City, is also lacking in merit. In this regard, it has been held that improperly repairing a traffic light can be considered to be launching a force or instrument of harm upon which liability may be predicated.

Daidone's Reply

In reply, Daidone argues that plaintiff submits no evidence to establish that it manufactured, programmed or repaired the controller at the Intersection, nor did it control or determine the timing of the traffic signal. From this it follows that is has established that there was no negligence on its part. Daidone emphasizes that it cannot be found liable to plaintiff because it had no notice of any alleged defect that could have contributed to plaintiff's accident. Daidone further avers that it does not need a rebuttal [*15]expert because plaintiff's own expert fails to identify any defect caused by Daidone, since the only issue that Mr. Hintersteiner identified concerned the timing of the lights, which was determined by DOT. Further, there were no complaints made regarding the Intersection between June 9, 2009 and the date of plaintiff's accident. Daidone also contends that plaintiff does not provide any evidence that the timing of the pedestrian and traffic signals at the Intersection were not operating according to the City's design.

Negligence on the Part of Daidone

Herein, Daidone establishes a prima facie entitlement to summary judgment by proffering evidence that it neither created nor contributed to the alleged dangerous condition that caused plaintiff's accident. In this regard, Daidone demonstrates, in reliance upon the Traffic Maintenance Log, that the only repair that it made to the traffic and pedestrian signals in the Intersection prior to plaintiff's accident was the replacement of a visor. In addition, although plaintiff seeks to rely upon a complaint made on June 9, 2009 with regard to an allegation of improper timing on the left turn signal, Daidone responded to the complaint and determined that it was unfounded (cf Davilmar, 7 AD3d at 560-561 [plaintiff raised an issue of fact as to whether Welsbach's repairs of the subject traffic signal were negligently performed, thereby launching a force or instrument of harm, by submitting evidence in admissible form that Welsbach last repaired the traffic signal approximately eight hours before the accident and that a total of six repair calls had been made earlier in the month]).Further, the only defect in the traffic signal found by Mr. Hintersteiner pertained to the timing of the left turn arrow and the pedestrian signal. The evidence before the court establishes that DOT, and not Daidone, was responsible for setting the timing on the traffic signal. Daidone's contract does not compel a contrary conclusion. In citing language that requires Daidone to repair and readjust the timing and settings required for the accurate and efficient operation of equipment, plaintiff fails to cite the language that limits Daidone's obligation to making adjustments "in accordance with Engineering schedules" (Contract, General Specifications, para c, p 116). Similarly, Section 9 of the General Specifications, controller timing, also provides that Daidone "shall reset the signal timing to conform with the latest timing schedule or as directed by the Bureau of Traffic Operations when such are reported to him or found by him to be faulty" (id. at 126). Accordingly, Daidone cannot be found to have caused the alleged defect, even assuming that one was found to exist, since the responsibility for setting the timing of the traffic and pedestrian signals at the Intersection remained with the City.

The evidence before the court establishes, however, that Daidone had a contract with the City to maintain and repair the traffic signals in Brooklyn, including the signals at the Intersection in which plaintiff was injured. Moreover, contrary to Daidone's assertions, a factual exists with regard to whether the traffic and pedestrian control signals controlling the Intersection malfunctioned. In this regard, plaintiff alleges that he had a "Walk" signal when he began to cross Atlantic Avenue, while Mr. Brady alleges that he had a green light when he passed through the Intersection. Thus, the traffic and [*16]pedestrian signals would be malfunctioning if the testimony of both plaintiff and Mr. Brady is believed, since the traffic signal would be giving both the right of way to move through the Intersection at the same time. This issue of fact cannot be resolved on the papers now before the court, since as was discussed above, on a motion for summary judgment, the court should not resolve issues of credibility (see Capelin Assoc., 34 NY2d 338; Scott, 294 AD2d 348).

Notice

Nonetheless, even assuming that the traffic and pedestrian signals malfunctioned on the day of plaintiff's accident, Daidone did not have notice of the alleged dangerous condition. In this regard, the last complaint received with regard to the traffic signal was entered into the Traffic Maintenance Log on June 9, 2009, nine days before plaintiff's accident, and referred only to the timing of the left turn arrow. Further, when a Daidone employee responded to the complaint, it was determined to be unfounded. No other complaints were reported before plaintiff's accident. Without notice, Daidone cannot be held liable to plaintiff for the injuries that he sustained as a result of the alleged malfunction of the traffic and pedestrian signals (see Piacquadio, 84 NY2d 967; Simmons, 84 NY2d 972).

Liability to Plaintiff

As was discussed above in addressing Welsbach's motion for summary judgment, Daidone similarly did not owe any duty to plaintiff. Although the negligent repair of a traffic light may be characterized as the launching of a force or instrument of harm (see Davilmar, 7 AD3d 559), Daidone makes a prima facie showing that it did not make any repairs to the subject traffic and signals prior to the accident (see generally Bazin v City of New York, 2009 NY 2009 NY Slip Op 31705(U), 8-9 (New York County Sup Ct, 2009). Accordingly, as was the case with Welsbach, in the absence of any evidence to support a conclusion that Daidone negligently repaired the traffic and pedestrian signals at issue herein, Daidone similarly cannot be said to have "launched a force or instrument of harm," and therefore cannot be found liable to plaintiff (cf. Laap v Francis, 54 AD3d 1006 [2008] [Welsbach failed to establish its prima facie entitlement to judgment as matter of law on the cross claims asserted against it, since a Welsbach Maintenance Report was internally inconsistent concerning whether Welsbach replaced a pole and traffic signal on the subject approximately two months before the accident, so that it failed to demonstrate, prima facie, that it was not negligent in the repair of the traffic signals controlling traffic at the subject intersection]).

Proximate Cause

Finally, as is discussed more fully in addressing the City's motion for summary judgment, the timing of the arrow allowing for a left turn onto Court Street from the westbound lane of Atlantic Avenue could not have been a proximate cause of plaintiff's accident.

The City's Motion for Summary Judgment[*17]

The City's Contentions

In support of its motion, the City first argues that as a municipality, it does not owe a duty of care to an individual for alleged negligence in performing governmental functions absent a "special relationship" and no such relationship existed here. Further, although a municipality owes an absolute duty to keep its highways in a reasonably safe condition, it is afforded qualified immunity from liability arising out of highway planning decisions.

The City goes on to argue that plaintiff cannot establish that the subject accident was caused by an alleged defect in the roadway or an alleged malfunction of the traffic and pedestrian signals at the Intersection. In the first instance, the City contends that the accident was caused by the apparent inattention of plaintiff, and possibly Mr. Brady, since both testified at their depositions that neither saw the other before the impact. In fact, plaintiff testified that he did not look to his left prior to stepping off the curb to cross Atlantic Avenue, nor did he look at the light controlling vehicular traffic. Thus, plaintiff's failure to make appropriate observations of the vehicles traveling on Atlantic Avenue before attempting to cross the street establishes a superceding intervening act, disrupting any alleged defect between the roadway and the accident.

Further, Mr. Gallo testified at his deposition that Daidone found no issues with the lights on June 9, 2009 and there were no calls regarding the Intersection from that date through the date of the subject accident. Moreover, if there had been an issue with sequencing of the lights, the vehicular lights are designed to flash and the pedestrian lights would not operate. In this regard, it must also be noted that although plaintiff's bill of particulars seems to indicate that the arrow for the left turn lane may be an issue, Mr. Brady was traveling in the right lane, towards the Gowanus Expressway, and was not in the turn lane. Also, like Welsbach and Daidone, the City argues that there is no evidence to establish that it had prior notice regarding any alleged defect.

The City goes on to contend that in the event that any part of the complaint is sustained, it is entitled to complete indemnification from Daidone. In support of this contention, the City relies upon language in its contract with Daidone which provides that: "If any person or property of the City or other sustains loss, damage or injury resulting from the operations of the Contractor and/or its Subcontractors in their performance of this Contract, or from the Contractor's and/or its Subcontractor's failure to comply with any of the provisions of this Contract or of the Law, the Contractor shall indemnify and hold the City harmless from any and all claims and judgments for damages and from costs and expenses to which the City may be subjected for which it may suffer or incur by reason therefore."[*18]

(Art 6D, p 212). "The Contractor shall defend at its own expense, indemnify and hold the City harmless from any and all claims or judgments for damages (including but not limited to delay damages from other Contractors) and from costs and expenses to which the City may be subjected or which it may suffer or incur allegedly arising out of or in connection with any operations of the Contractor and/or its Subcontractors, or their failure to comply with the provisions of this Contract or of the Law."

(Art 6E, p 213). "The Contractor agrees to indemnify and hold harmless the City of New York and each officer, agent and employee of the City of New York against any and all claims for personal injury or wrongful death or damage to personal property arising out of the negligent performance of the Work hereunder or caused by an error, omission or negligent act of the Contractor or anyone employed by the Contractor."

(Art 7O, p 286).

The City avers that Mr. Gallo acknowledged at his deposition that Daidone was obligated to ensure that the controller was operating on the proper timing schedule, i.e., it was obligated to repair and readjust the timing and settings of the lights required for accurate and efficient operation of the equipment and to reset the timing if it was found to be faulty. Thus, since a technician from Daidone responded to a complaint regarding the Intersection nine days before the subject accident and reported that the timing sequence was operating properly and that no repairs or adjustments were necessary, if this was not the case, the City should be entitled to indemnification from Daidone pursuant to the above quoted language.

Plaintiff's Contentions

In opposition to the motion, plaintiff argues that the City is not shielded from liability on the basis of qualified immunity or because it does not have a special relationship with him. More specifically, plaintiff alleges that Mr. Hintersteiner's report indicates that traffic studies were undertaken as the result of a complaint, reference #CK03-13-2. The City, however, offers no information concerning the nature of the complaint or the studies that were done in response thereto. Plaintiff thus contends that the City can be held accountable for dangerous roadways where an inadequate traffic study was conducted, without the need to establish a special relationship, because its inadequate study and the change to the traffic signal made as a result thereof created the [*19]alleged dangerous condition. Plaintiff concludes that since the City was made aware of an alleged dangerous condition involving an intersection, its failure to address the issue of the studies that it undertook in response compels denial of its motion for summary judgment.

Plaintiff also contends that in this case, the City assumed a duty when it altered the pre-set timings for the vehicle and pedestrian signals at the Intersection and reprogrammed the safety feature of the conflict monitor. Plaintiff asserts that in making this alteration, it waived its protective cloak and assumed a duty to a particular class of persons, i.e., pedestrians crossing the west approach of Atlantic Avenue. Plaintiff goes on to argue that his position is supported by the fact that complaints were received with regard to the traffic and pedestrian signals at the Intersection, including the June 9, 2009 complaint. Although the responding repairman determined that the signals were operating properly on the pre-timed program, it is plaintiff's position that the program, as altered by the City, was not properly timed and presented a dangerous situation. Plaintiff also asserts that this complaint, along with the others made with regard to the Intersection, provided notice of an alleged dangerous condition to the City. In addition, plaintiff contends that since the City created the alleged dangerous condition when it altered the built-in safety protocols of the traffic signal, there is no need to demonstrate notice.

Plaintiff goes on to argue that there is no merit to the City's assertion that neither a malfunction of the lights nor a defect in the roadway is a proximate cause of the accident, since it was caused by the inattention of either plaintiff or Mr. Brady. Plaintiff contends that in this regard, his conduct does not amount to contributory negligence as a matter of law because he was entitled to rely upon the protection that the traffic light offered and presume that he would not be run down. Thus, at best, an issue of comparative fault is raised.

Daidone's Contentions

Daidone alleges that it opposes only that portion of the City's motion that seeks indemnification from it in the event that the City is found liable. More specifically, Daidone argues that its contractual obligations to the City could not have caused the alleged defective condition, since there is no indication in the Traffic Maintenance Log that any complaints were made with regard to the subject Intersection. From this it follows that the indemnification provisions in the contract could not have been triggered. Daidone again emphasizes that its work did not include programming the controller for the traffic lights or determining the timing of the lights, both of which were determined solely by DOT.Daidone also argues that at no point in his deposition testimony, complaint, amended complaint or bill of particulars does plaintiff describe a malfunction of the traffic control device at the Intersection. Similarly, Mr. Brady does not testify with regard to any malfunction. Finally, plaintiff notes that Mr. Hintersteiner also fails to identify any defective condition or malfunction of the traffic or pedestrian signal, nor did he implicate Daidone in any way. Instead, Mr. Hintersteiner refers only to the [*20]programming and the pre-set and modified timing of the signals at the Intersection.

The City's Reply

In reply, the City argues that Mr. Hintersteiner's affidavit must be disregarded because his opinions are conclusory and are not supported by any evidence. In addition, Mr. Hintersteiner fails to identify with any specificity the documents, if any, to which he is referring in the over 1000 pages annexed to plaintiff's opposition papers.

The City further contends that although the section of Mr. Hintersteiner's affidavit pertaining to the "Evaluation of Accident" is presumed to be premised upon the police accident report, he fails to include relevant statements made therein as, for example, that three witnesses stated that plaintiff crossed the Intersection against the light. Further, in his "Evaluation of Traffic Study," the City asserts that although Mr. Hintersteiner references a Traffic Study conducted on January 22, 2004, he does not attach a copy of the study to his report. Moreover, he states that the study was undertaken to determine the need for a left turn signal, not as the result of any pedestrian safety issues.

The City goes on to argue that although Mr. Hintersteiner refers to the "Highway Capacity Manual" as a computerized program, it is, in fact, a book. Further, although plaintiff contends that the manual would not permit the use of a pedestrian crossing from Atlantic Avenue while the traffic signal for Atlantic Avenue was green, he does not state that any code, standard, rule or regulation was violated. Moreover, Mr. Hintersteiner does not explain why a study by DOT would be needed to determine if traffic could turn westbound on Atlantic Avenue at the same time that a pedestrian is crossing Atlantic Avenue from the west approach, nor can he, since westbound traffic turning left on Atlantic Avenue could not come into contact with a pedestrian crossing Atlantic Avenue on the west side of Court Street, as was plaintiff.

The City next asserts that while Mr. Hintersteiner refers to an Accident Study conducted by DOT that indicated that seven pedestrian accidents occurred at the Intersection between 2007 and 2009, he again fails to identify the documents upon which he relies in making this assertion. In addition, no details are provided with regard to the nature or cause of those accidents. Nor does he offer any evidence to support his assertion that the timing of the traffic signal was reprogrammed to bypass the safety protocols for the safety barrier line, what that standard was or how it was violated. Mr. Hintersteiner also states, in his "Evaluation of Traffic Signal," that DOT changed the phasing and sequencing on January 12, 2010. Again, he fails to identify the basis for his this assertion, or to explain what the change consisted of and its relevance to the issues now before the court. Moreover, even if changes were made, evidence of subsequent remedial measures is inadmissible.

The City therefore concludes that Mr. Hintersteiner's opinion must be disregarded because it is not based upon any facts contained within the record and there is no certainty in his conclusions. The City also argues that it is well settled law that an expert may not issue an opinion that a defendant's alleged negligence is the cause of an accident. [*21]

Turning to other issues, the City argues that it did not have any notice of a dangerous condition at the Intersection, so that this court may not find that it was obligated to undertake a traffic study. From this it also follows that the court cannot find that the City conducted an inadequate study. Moreover, since the City had no notice of a dangerous condition, so that it was not obligated to undertake a study and did not find that remediation was necessary, there can be no finding that remediation was not undertaken in a reasonable period of time.The City also argues that even if it could have foreseen an accident, but did not have the power to control it, it cannot be held liable for the consequences. In this case, there is no evidence that the traffic control device was designed in a dangerous manner, nor is there any evidence that the City had any control over plaintiff to prevent him from crossing the street without looking to see if there was oncoming traffic.

Finally, plaintiff was not injured by a vehicle making a left turn. The complaint allegedly received by the City on June 9, 2009, which pertained to the timing of the left turn signal, is therefore irrelevant. The City also notes that plaintiff testified at his deposition that he was familiar with the intersection and never observed any issues with vehicle or pedestrian control lights.

Mr. Hintersteiner's Opinion Regarding Defendants' Negligence

As a threshold issue, the court first notes that the affidavit submitted by Mr. Hintersteiner is of limited probative value. Most significantly, it must be recognized that " [w]here the offered proof intrudes upon the exclusive prerogative of the court to render a ruling on a legal issue, the attempt by a plaintiff to arrogate to himself a judicial function under the guise of expert testimony will be rejected'" (Williams v New York City Tr. Auth., 108 AD3d 403, 405 [2013], quoting Singh v Kolcaj Realty, 283 AD2d 350, 351 [2001]). Moreover, "[a]n expert's affidavit offered as the only evidence to defeat summary judgment must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation and would, if offered alone at trial, support a verdict in the proponent's favor" (Adamy v Ziriakus, 92 NY2d 396, 402 [1998]).

Although an expert need not base his or her opinion upon personal knowledge, his or her opinion must be based upon facts in evidence (see e.g. Admiral Intersection. Co. v Joy Contrs., 19 NY3d 448, 457 [2012] [internal citations omitted]). Accordingly, it is a "basic principle that an expert's opinion not based on facts is worthless" (Caton v Doug Urban Constr. Co., 65 NY2d 909, 911 [1985], quoting Cooke v Bernstein, 45 AD2d 497, 500 [1974]). "[A]n expert cannot reach a conclusion by assuming material facts not supported by record evidence" (Roques v Noble, 73 AD3d 204, 206 [2010], citing Cassano v Hagstrom, 5 NY2d 643, 646 [1959]; Gomez v New York City Hous. Auth., 217 AD2d 110, 117 [1995]; Matter of Aetna Cas. & Sur. Co. v Barile, 86 AD2d 362, 364-365 [1982]). Two limited exceptions to this rule exist, which hold "that an expert may rely on out-of-court material if it is of a kind accepted in the profession as reliable in [*22]forming a professional opinion" or if it comes from a witness subject to full cross-examination on the trial'" (Hambsch v New York City Tr. Auth., 63 NY2d 723, 726 [1984]; quoting People v Sugden, 35 NY2d 453, 460, 4610 [1974]).

Herein, although Mr. Hintersteiner bases his opinion, in large part, upon a traffic study undertaken in response to complaint #CK03-13-2, he does not attach a copy of this complaint to his report. Similarly, his assertion that the timing on the traffic and pedestrian signals at the Intersection was changed is not supported by any evidentiary basis. Nor does his reliance upon information that is not in evidence fall within the above cited exceptions to the rule.

Further, for the affidavit of an expert to be sufficient to raise a triable issue of fact, it must present evidence of a regulation or industry-wide standard in support of the plaintiff's claim. In his affidavit, Mr. Hintersteiner fails to cite to any regulations, facts or data in support of his conclusion that the traffic and pedestrian signals at the Intersection were malfunctioning, and as such is not sufficient to raise a triable issue of fact (see e.g. Hartnett v Chanel, 97 AD3d 416, 419 [2012]; see generally Cassidy v Highrise Hoisting & Scaffolding, 89 AD3d 510, 511 [2011] [an expert's opinion should be disregarded where no authority, treatise, standard, building code, article or other corroborating evidence is cited to support the assertion concerning an alleged deviation from good and accepted industry custom and practice]; Rivera v Bilynn Realty, 85 AD3d 518 [2011] [plaintiff failed to raise an issue of fact where the opinion of her expert was unsupported by evidence of a published industry or professional standard upon which it was based]).

Moreover, even if Mr. Hintersteiner's opinion is considered, plaintiff still fails to raise an issue of fact sufficient to warrant denial of the City's motion for summary judgment.

Qualified Immunity

Turning to the merits of the issues raised herein, it must be recognized that: "It has long been held that a municipality owe[s] to the public the absolute duty of keeping its streets in a reasonably safe condition. While this duty is nondelegable, it is measured by the courts with consideration given to the proper limits on intrusion into the municipality's planning and decision-making functions."

(Friedman v State of New York, 67 NY2d 271, 283 [1986] [internal quotation marks and citations omitted]; accord Alexander v Eldred, 63 NY2d 460, 465-466 [1984]; Weiss v Fote, 7 NY2d 579, 584-586 [1960]). "The Weiss court examined a municipality's decision to design a traffic light with a four-second interval between changing signals, and concluded that there was no indication that due care was not exercised in the preparation of the design or that no reasonable official could have adopted it'" (Friedman, 67 NY2d at 283-284, quoting Weiss, 7 NY2d at 586). Further, it is well established that a [*23]municipality is not an insurer of the safety of its roadways (see e.g. Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Levi v Kratovac, 35 AD3d 548, 549 [2006]). Accordingly, in the field of traffic design engineering, a municipality is accorded a qualified immunity from liability arising out of a highway planning decision (see generally Turturro v City of New York, 77 AD3d 732, 735 [2010]).

"Once a municipality is made aware of a dangerous traffic condition, however, it must undertake reasonable study thereof with an eye toward alleviating the danger" (Chunhye Kang-Kim v City of New York, 29 AD3d 57, 59 [2006], citing Friedman, 67 NY2d at 283). "[A] municipality may be held liable if, after being made aware of a dangerous traffic condition, it does not undertake an adequate study to determine what reasonable measures may be necessary to alleviate the condition, or, having determined what reasonable measures were necessary, it unjustifiably delays in taking them" (Bresciani v County of Dutchess, 62 AD3d 639, 640 [2009], citing Friedman, 67 NY2d at 284-286; accord Turturro, 77 AD3d at 735). In addition, "[a] governmental body may be liable for a traffic planning decision only when its study is plainly inadequate or there is no reasonable basis for its [] plan'" (Affleck v Buckley, 96 NY2d 553, 556 [2001], quoting Friedman, 67 NY2d 271 at 28). " [S]omething more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public'" (Chunhye Kang-Kim, 29 AD3d at 60, quoting Weiss, 7 NY2d at 588).

In this case, although Mr. Hintersteiner argues that the City failed to undertake a proper traffic study in response to complaint #CK03-13-2, as noted above, he fails to provide any evidence with regard to the nature of that complaint. More significant, however, is the fact that both his report and a review of the substantiating data that plaintiff attaches to his opposing papers indicate that the complaint and ensuing study pertained to the need for a left hand turn signal in the Intersection. There is no indication that the complaint involved any claim relating to pedestrian safety. Moreover, the data discussed by Mr. Hintersteiner indicates that the City did, in fact, consider pedestrian crossings and vehicular traffic at the Intersection prior to making its determination to add a left turn arrow on Atlantic Avenue. Thus, Mr. Hintersteiner makes no showing that the study conducted was inadequate to support this change in the traffic and pedestrian signals (see e.g. Soto v City of New York, 63 AD3d 1035, 1036-1037 [2009] [plaintiff failed to establish, through proof of prior similar accidents, violations of mandatory safety standards, or any other evidence, that the placement of the subject guardrails lacked any reasonable basis because the extant guardrails did not prevent his car from colliding with a tree]). Accordingly, the court concludes that the City did not create the alleged dangerous condition that caused plaintiff's accident by reason of having conducted an inadequate prior to adding a left turn signal at the Intersection (see e.g. Buhr v State, 295 AD2d 462, 463 [2002] [claimant failed to prove that the planning decision at issue was made without an adequate study where claimant's expert testified that the State should [*24]have reviewed accident history as part of its study, but failed to establish how that would have altered the State's decision]). Mr. Hintersteiner' opinion that different timing and/or phasing would not have been more appropriate does not compel a contrary result (see e.g. Affleck, 96 NY2d at 55 [a recommendation from a private engineering firm that a signal be installed at a particular location does not, itself, raise a triable issue of fact i.e., the plaintiff must show not merely that another option was available but also that the plan adopted lacked a reasonable basis]).

Similarly, neither plaintiff nor Mr. Hintersteiner points to any other evidence to support a finding that the City was put on notice that the Intersection presented a pedestrian danger which necessitated a further study of the alleged danger. From this it follows that the City cannot be found liable to plaintiff for failing to timely implement any necessary remedial measures (see e.g. Lucchese v Silverman, 25 AD3d 589, 590-591 [2006] [the City established its prima facie entitlement to judgment as a matter of law where it demonstrated that its signage plan was neither plainly inadequate nor lacking in a reasonable basis and that it had no notice, either constructive or actual, of any dangerous condition on the particular stretch of road prior to the instant accident which would have given rise to a duty to review either that plan or any other aspect of the design of the roadway]; cf. Bresciani, 62 AD3d at 640 [the County's submissions failed to establish as a matter of law that once it was made aware that the subject roadway became dangerously slippery as water accumulated on it in wet weather, the County undertook an adequate study to determine what, if any, remedial measures were necessary, or that it did not unjustifiably delay in implementing such measures]).

Thus, since plaintiff fails to make a prima facie showing that the City created the alleged dangerous condition, the absence of notice precludes a finding of liability on the part of the City (cf. Burgess v Hempstead, 161 AD2d 616, 617-618 [1990] [no prior written notice was required where plaintiff created a question of fact as to whether the town had an obligation to conduct a traffic investigation and study of the roadway in question, and if so, whether the town was negligent in failing to conduct an adequate investigation where plaintiff claimed that town failed to install and properly place traffic signs]; Lacey v Horan, 119 AD2d 806, 807-808 [1986] [the State or municipality need not be given notice where plaintiff alleged that the county committed an affirmative act of negligence, to wit, installation of a defective guide rail, and there were clearly factual disputes as to whether or not the guide rail was installed pursuant to a duly executed highway plan or was installed in conformity with accepted engineering standards on the date of construction]; see also Abreu v City of New York, 14 AD3d 469, 470 [2005]; Miller v City of New York, 225 AD2d 396 [1996]; Gormley v County of Nassau, 150 AD2d 342 [1989]).

Special Relationship

The court also declines to find that the City established a special relationship with plaintiff when it changed the timing and phasing on the traffic and pedestrian signals at [*25]the Intersection. In addressing this issue, it must first be noted that in order "[t]o sustain liability against a municipality, the duty breached must be more than that owed the public generally" (Lauer v City of New York, 95 NY2d 95, 100 [2000]). To establish that a municipality voluntarily assumed a special relationship with a plaintiff, four elements must be established: "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking."

(Applewhite v Accuhealth, 21 NY3d 420, 430-431 [2013] [internal citations omitted]).

In this case, plaintiff fails to establish that the City assumed, through promises or other actions, an affirmative duty to act on his behalf. Similarly, this is not a case where there was any direct contact between plaintiff and the City, since there is no evidence that plaintiff contacted the City's agents or relied on any assurances of protection. More specifically, this is not a case where plaintiff seeks to recover from a municipality for its negligent failure to provide protection where a promise of protection was made to a particular citizen and, as a consequence, a "special duty" to that citizen arose (see e.g. Sorichetti v City of New York, 65 NY2d 461] [1985] [a special relationship was found to exist where a mother sought the help of the police to protect her six-year-old daughter]). Nor is this a case in which plaintiff relied on the protection allegedly offered by the presence of "Walk" signal at the Intersection (see generally Alava v City of New York, 54 AD3d 565 [2008] [plaintiff failed to raise a triable issue of fact that the city assumed a special duty to protect her or that she justifiably relied on the city's alleged affirmative undertaking to provide her with protection where she did not demonstrate that she communicated any information to the city before she was assaulted concerning her assailant or inadequate security, or that the city ever made a direct promise to her on which she relied]). Indeed, every automobile and pedestrian passing through the intersection would have the same expectations as did plaintiff, so that the duty allegedly breached was that owed to the general public. Similarly, this is not a case in which the City voluntarily assumed a duty and then failed to perform that duty in a nonnegligent manner (see generally Florence v Goldberg, 44 NY2d 189, 196 [1978] [the infant plaintiff's mother relied upon the continued performance by the municipality of a special duty that it assumed to provide a school crossing guard]; Applewhite, 21 NY3d 420 [issues of fact were raised with regard to whether the city owed a special duty to plaintiffs where there was a question of fact as to whether emergency medical technicians assumed an affirmative duty in deciding to have advanced life support paramedics undertake more [*26]sophisticated medical treatment rather than transporting the infant to a hospital]).

Accordingly, the court concludes that the City did not have a special relationship with plaintiff upon which to premise a finding of liability.

Proximate Cause

" The liability of a municipality begins and ends with the fulfillment of its duty to construct and maintain its highways in a reasonably safe condition. No liability will attach unless the alleged negligence of the municipality in maintaining its roads is a proximate cause of the accident'" (Crawford v Village of Millbrook, 94 AD3d 1036, 1038 [2012], quoting Levi, 35 AD3d at 549 [citations omitted]).

As discussed above, plaintiff fails to establish that the City was negligent in the timing and/or phasing of traffic and pedestrian signals in the Intersection. Moreover, even assuming that the signal was not phased properly in that it allowed westbound traffic on Atlantic Avenue to make a left turn onto southbound Court Street while the "Walk" signal was on for pedestrians crossing Atlantic Avenue from the northwest corner of Court Street, this configuration of the traffic control devices could not have caused or contributed to plaintiff's accident, since cars turning left would never reach the crosswalk where plaintiff was injured. From this it follows that this alleged defect could not be a proximate cause of plaintiff's accident.

Thus, since there is no evidence that any features of the traffic and pedestrian control signals in the Intersection was a proximate cause of plaintiff's accident, the intervening acts of plaintiff crossing against the light and of Mr. Brady in failing to see plaintiff were the proximate causes of the accident, as they were not normal and foreseeable consequences of the situation created by the City's decision to install a green arrow for westbound traffic turning onto Court Street (see generally Levi, 35 AD3d at 550 [there was no evidence that any feature of subject intersection was a proximate cause of the decedent's accident, since the intervening acts of the decedent in crossing against the light, and of the defendant in exceeding the speed limit, were the proximate causes of the accident, as they were not normal and foreseeable consequences of the situation created by the City's improvements to the intersection]; cf. Kuhland v City of New York, 81 AD3d 786, 787-788 [2011] [there was a rational process by which the jury could have found that the intersection was unreasonably dangerous for pedestrians, that the City had notice of the dangerous condition, and that the City's negligence was a proximate cause of the accident]).

Even assuming that the evidence adduced at trial establishes that plaintiff had a "Walk" signal in his favor when he was crossing Atlantic Avenue, that he did not look both ways either before or during his crossing, that he did not see the vehicle which struck him and that Mr. Brady went through a red light before striking him, the City is still entitled to summary judgment dismissing the complaint as against it, since these facts may serve to raise issues of comparative negligence as between plaintiff and Mr. Brady, but do not involve any negligence on the part of the City (see generally Iaia v Steinway [*27]Omnibus, 1 AD2d 978, 978-979 [1956]).

Finally, Mr. Hintersteiner's assertion that the timing of the traffic and pedestrian signals at the Intersection were again changed in 2010 will not be addressed by the court, since "[t]he general rule is that evidence of subsequent repairs is not admissible in a negligence case" (Cacciolo v Port Auth., 186 AD2d 528, 530 [1992]; see generally Orlando v City of New York, 306 AD2d 453, 453-454 [2003] [the court providently exercised its discretion in denying that branch of the plaintiff's motion which was to compel the production of maintenance and other requested records that postdated the plaintiff's accident]).

Indemnification

Having found no liability on the part of Daidone or the City, the City's request for an order dismissing Daidone's demand for indemnification from it is granted for the reasons discussed above.

Conclusion

For the above discussed reasons, the motions by Welsbach, Daidone and the City for summary judgment dismissing the complaint and all other claims against them is granted. The motion by the City to strike plaintiff's note of issue is therefore denied as moot. The complaint as against Mr. Brady shall be severed and shall continue.

The foregoing constitutes the order and decision of this court.

E N T E R,

J. S. C. Footnotes

Footnote 1: Although Mr. Hintersteiner's affidavit refers to marked exhibits in support of his report, the exhibits in the papers submitted to the court are not so marked.

Footnote 2: Despite Mr. Hintersteiner's reference to the complaint in his affidavit, plaintiff does not attach a copy of it to his opposition papers.

Footnote 3: An ASTC controller has a PC in it so that it can be seen in the control box and can be remotely modified. Previously, the DOT had to change timing through a "hard-wired telephone-wired" system.

Footnote 4: Welsbach also argues that its motion for summary judgment must be denied on the ground that plaintiff relies only upon an affirmation of counsel in opposition to the motion. In support of its motion, however, Welsbach annexed copies of the parties' deposition transcripts and a copy of its contract with the City. Since it is well settled that an attorney's affirmation may serve as a vehicle to introduce documentary evidence on a motion for summary judgment (see e.g. Lewis v Safety Disposal Sys., 12 AD3d 324, 325 [2004], citing Olan v Farrell Lines, 64 NY2d 1092 [1985]), this argument is lacking in merit because plaintiff's counsel relies upon these documents in making his arguments in opposition.

Footnote 5: Although not submitted to the court in support of or in opposition to Welsbach's motion, Mr. Hintersteiner's affidavit indicates that the only defect found with regard to the functioning of the traffic and pedestrian signals in the Intersection was that there was an issue with the timing of the green turn arrow onto Court Street from Atlantic Avenue. Similarly, the papers submitted on Daidone's motion and the City's motion establish that DOT was responsible for setting the timing in the traffic and pedestrian signals, so that it cannot be found that this alleged defect resulted from Welsbach's workmanship. Thus, these arguments also support the conclusion that the warranty should not be construed to impose any obligation on Welsbach, since the alleged defects do not arise out of its work.

Footnote 6: Plaintiff also alleges, in counsel's affirmation in opposition, that the timing of the traffic lights created insufficient time for a pedestrian to cross Atlantic Avenue. Although Mr. Hintersteiner's affidavit discusses the timing of the phases for the signals, his affidavit does not reach this conclusion.