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Cohen v. Macaya

Immunity Cannot be Conferred on City to Avoid Liability at Preliminary Stage of Park Study

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Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:Papers NumberedDefendants’ Notice of Motion with Accompanying Affidavits and Exhibits        1Plaintiff’s Affirmation in Opposition with Accompanying Affidavits and Exhibits              2Defendants’ Reply Affirmation            3DECISION/ORDER

*1  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

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