Cohen v Macaya

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[*1] Cohen v Macaya 2018 NY Slip Op 28095 Decided on March 23, 2018 Supreme Court, Kings County Levine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on March 23, 2018
Supreme Court, Kings County

Linda Cohen, Plaintiff,




Attorney for Plaintiff

Sanders, Sanders, Block,Woycik,

Veiner & Grossman, P.C.

100 Herricks Road

Mineola, NY 11501

Attorney for Defendants

Zachary W. Carter

Corporation Counsel of the City of New York

100 Church Street

New York, NY 10007
Katherine A. Levine, J.

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


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 NY3d 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 AD2d 698 (2d Dept. 1996), and Quigley v. Goldfine and Village of Garden City, 276 AD2d 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 [*2]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 NY3d 469, 479 (2016); Applewhite v. Accuhealth, Inc., 21 NY3d 420, 425 (2013); Heeran v Long Is. Power Auth. (LIPA), 141 AD3d 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. Turturro, supra, 28 NY3d at 469; Grasso v New York State Thruway Auth., 2018 NY Slip Op 01453, 2018 NY App. Div. LEXIS 1450, *6 (2d Dept. 2018); Olenick v City of New York, 56 Misc 3d 389, 391-392 (Sup. Ct. Kings Co. 2017).

On the other hand, a municipality's activities which "essentially substitute for or supplement traditionally private enterprises" are considered "proprietary functions." Applewhite, supra, 21 NY3d at 425; Grasso, supra, 2018 NY App. Div. LEXIS 1450, at *6. If the municipality was exercising a proprietary function, it "is subject to suit under the ordinary rules of negligence applicable to non-governmental parties." Wittorf v City of New York, 23 NY3d 473, 479, 991 (2014). The planning, design, and maintenance of roads is generally considered to be a proprietary function. Turturro, supra, 28 NY3d at 479; Wittorf, supra, 23 NY3d 473 at 480; A.V. v City of New York, 2018 NY Slip Op 30380(U), 2018 NY Misc. LEXIS 747, *22 (Sup. Ct. NY Co. 2018).

However, in consideration of a municipality's absolute and non-delegable duty of keeping its streets in a reasonably safe condition, a municipality has qualified immunity from liability arising out of highway planning decisions in the specific proprietary field of roadway safety. Turturro, supra, 28 NY3d at 479; Friedman v State of New York, 67 NY2d 271, 283 (1986); Kuhland v City of New York, 81 AD3d 786, 787 (2d Dept. 2011). To establish entitlement to this immunity, the municipality must first demonstrate that the relevant discretionary determination resulted from a "deliberative decision-making process." Ramirez v State of New York, 143 AD3d 880, 881 (2d Dept. 2016); Iacone v Passanisi, 133 AD3d 717, 718 (2d Dept. 2015); Langer v Xenias, 134 AD3d 906, 907-908 (2d Dept. 2015). A "deliberative" process involves invoking the expertise of qualified employees and obtaining the necessary data. Friedman v. State, 67 NY2d 271, 285-286 (1986); Langer, supra, 134 AD3d at 907-908; Evans v State of New York, 130 [*3]AD3d 1352, 1355 (3d Dept. 2015). It must then demonstrate that its duly authorized public planning body has "entertained and passed on the very same question of risk as would ordinarily go to the jury." Turturro, supra, 28 NY3d at 480; Ramirez v State of New York, 143 AD3d 880, 881. If the municipality has made such a showing, plaintiff then has the burden of showing that immunity should be denied because after becoming aware of a dangerous traffic condition, the municipality failed to undertake an adequate study to formulate appropriate remedial measures or its traffic plan has no reasonable basis. Affleck v. Buckley, 96 NY2d 553, 557 (2001); Langer, supra, 134 AD3d at 907; Appelbaum v. County of Sullivan, 222 AD2d 987, 989 (3d Dept. 1995).

Defendant City does not dispute that it had notice of a dangerous condition on the West Drive, and that the Task Force was formed in response. The issue is whether defendants conducted an adequate study. Although the defendants participated in a Task Force to study the general safety of the West Drive for pedestrians, bicyclists and motorists, this Court finds that at the time of the incident involving plaintiff, a duly authorized public planning body had not yet passed on the very same questions of risk that would go to the jury, as the study was still in the preliminary stage.

In particular, Bray's testimony reveals that as of the time of the incident, the Task Force had not yet studied whether barrels, high visibility markings, and speed reduction and pedestrian warning signs should have been placed on the West Drive, much less the subject location. Given the preliminary stage of the study, immunity cannot be conferred upon the City to avoid liability to it. See, Ernest v. Red Creek Cent. Sch. Dist., 93 NY2d 664, 673 (1999) (Although the county completed a study regarding speed limit near the area where a student was struck while crossing a road in front of his school, it was not entitled to immunity because it did not study the specific risk claimed, namely, the danger posed to students by the absence of a sidewalk); Warren v Evans, 144 AD3d 901, 902 (2d Dept. 2016) (County was not entitled to immunity where it failed to establish that its completed study encompassed the issue of whether to install a left turn signal, which was the question of risk that would be posed to the jury); Kuhland, supra, 81 AD3d at 787 (City not entitled to qualified immunity since at the time of the accident, the study which it had completed did not address the intersection at issue).

Furthermore, the City fails to demonstrate that its failure, prior to the incident, to place warning signs and barrels to slow downhill traffic at the subject location, and to trim the hedges to improve visibility, resulted from a "deliberative decision-making process." The City's failure to invoke the expertise of highway and civil engineers, traffic safety experts, or other experts at the Task Force meetings prior to the incident, certainly indicates the lack of a genuine deliberative process. See, Friedman, supra, 67 NY2d at 285-286; Van De Bogart v. State, 133 AD2d 974, 976 (3d Dept. 1987).

The cases which defendant cites are inapposite. In O'brien,supra, the court held that the City was immune from liability when it undertook a study involving experts to determine whether a traffic control device was necessary at a particular intersection, despite the fact that it did not complete the study at the time of the subject accident. In Quigley, supra, 276 AD2d at 681, the court similarly held that the county had immunity because it demonstrated that it was in the process of conducting a study and devising a traffic control plan for the subject intersection when the accident occurred. O'brien and Quigley are factually distinguishable to the extent that in both cases, the municipality was in the midst of studying the particular risk that would be put before the jury, and in O'brien, experts had been retained. Furthermore, these cases are inconsistent with Turturro, which requires, as a condition for immunity, that the public planning body "entertained and passed on the very same question of risk," meaning that the relevant study had already been completed. Thus, the Court finds that the finality component of Turturro supersedes O'Brien and Quigley, and that the latter cases are not determinative.

The City further argues that regardless of its entitlement to immunity, it is entitled to summary judgment because its actions were not the proximate cause of the incident. However, summary judgment cannot be granted on this basis because there are issues of fact as to proximate cause and contributory negligence.

In light of the above, the City's motion for summary judgment is denied. This constitutes the Decision and Order of the Court.

March 23, 2018


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