Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Defendant City’s Notice of Motion with Accompanying Affirmations and Exhibits 1 Transit’s Affirmation in Opposition with Accompanying Affirmations and Exhibits 2 Plaintiff’s Affirmation in Opposition with Accompanying Affidavits and Exhibits 3 Defendant City’s Affirmation in Reply with Accompanying Affirmations and Exhibits 4 Plaintiff Benjamin Samuel Carson (“plaintiff” or “Carson”), a pedestrian, was struck by a city bus operated by Randy Machicote while crossing the street at the intersection of Fulton Street and Hudson Avenue (“subject intersection”) in Brooklyn on April 9, 2009. It is undisputed that the bus driver had a green light. Plaintiff claims that the intersection was dangerous and negligently designed, and that the pedestrian crossing signal was negligently placed and confusing. He believes that he had a walk signal in his favor on Fulton Street when the signal was actually meant to face pedestrians crossing Hudson Avenue. This court previously denied defendant City of New York’s (“City” or “defendant”) motion for summary judgment on the issues of notice and proximate cause, but reserved decision on the City’s motion for summary judgment based on qualified immunity. Pursuant to CPLR §3212, the City moved for summary judgment dismissing the complaint, claiming that it is has qualified immunity because prior to the accident, it had undertaken an extensive planning process and as a consequence had installed a new crosswalk and signals at the subject intersection. The City claims that it exercised discretion in deciding on the design for the subject intersection, which represented the most protective choice of the various options available after the study. The City further claims that it considered the very hazard of which plaintiff claims, i.e., the placement of the pedestrian signal that plaintiff claims confused him, and determined that the placement was safe for pedestrians. In support of its motion, the City first presented the EBT testimony of Kamal Zaki, the Administrator for the Intersection Control Unit of DOT’s Signal Division. Zaki testified that the 2009 DOT study that was done for the intersection of Fulton Street and Hudson Avenue found a high volume of pedestrian traffic and recommended that traffic signals be installed at the subject intersection. The City also attached the study, entitled “Intersection Control Analysis,” which consists of accident data at the subject intersection, requests for a traffic signal, data on the volume of pedestrian traffic, and announcements to different political leaders that a traffic signal was approved. The study also includes an email by Christopher Hrones, the Downtown Brooklyn Transportation Coordinator, which stated that “a single pedestrian crossing on either the east or west side of Hudson would probably be sufficient.” The City also attached the affidavit of James Huey, the Administrative Project Manager of DOT’s Signal Design Unit who oversees projects related to traffic signal design. Duey averred that while the original plan was to place the pedestrian signal on the western side of Fulton Street, he determined, “after consultation with others at the Department of Transportation,” that it would be improper to place a pedestrian signal there since there was a fence which prohibited pedestrians from crossing on the western side. He then determined that it was sufficient to have a crossing on the eastern side of Fulton Street at its intersection with Hudson Avenue. However, “after receiving information from the electrical inspector that the conduit could not travel to that corner due to roadway hardware I instructed that the pole location be changed to the southern corner of the northwest corner of Fulton Street and Hudson Avenue.” He further maintains that in making this decision, he considered vehicular and pedestrian safety. Finally, the City submitted the EBT testimony of Yakov Shteyman, a supervisor in DOT’s Electrical Inspection Unit, who was responsible for inspecting the installation of new pedestrian signal at the subject intersection. Shteyman testified that he had spoken with James Huey to make him aware of a problem with the placement of the traffic pole at the subject intersection, and after that conversation, Huey decided to move the traffic pole from its original planned location. The New York City Transit Authority (“TA”) and Randy Machicote oppose the City’s motion on the ground that the City “placed a pedestrian traffic signal in a wrong location; in an improper location; in a different location than originally intended; in an unstudied location; in an unsafe location; and in a negligent location.” The TA points out that the decision to move the pedestrian signal ten feet from its originally-intended location was made with no more than a phone call to a middle manager in an office, and that nobody came to the scene to study the change in location, or made any additional measurements or studied any risks associated with moving the signal. The TA further points out that Huey could not have considered pedestrian safety via a phone call without ever going to the location himself. Plaintiff, in opposition to the City’s motion presents the affidavit of Steven Schneider, a licensed professional engineer. He avers that the pedestrian signal was “malpositioned” and ambiguous, as it was unclear to pedestrians as to whom the WALK sign was directed. He further contends that the procedure followed by the City in designing and placement of the pedestrian signal did not comply with the Manual on Uniform Traffic Control Devices (“MUTCD”), as the decision to move the traffic signal was bereft of the benefit of engineering judgment. Pursuant to 17 NYCRR Chapter V, traffic control devices installed on public streets are required to conform to the MUTCD, published by the Federal Highway Administration. Section 1A.09 of the MUTCD 2009 Edition provides: The decision to use a particular device at a particular location should be made on the basis of either an engineering study or the application of engineering judgment.” 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 field of traffic design engineering. Rodriguez v. Palacio, 199 AD3d 728, 731 (2d Dept. 2021); Heins v. Vanbourgondien, 180 AD3d 1019, 1021 (2d Dept. 2020); Cohen v. Macaya, 59 Misc 3d 888, 890-891 (Sup. Ct. Kings Co. 2018). Under the qualified immunity doctrine, “a governmental entity may not be held liable for a highway safety planning decision unless its study of a traffic condition is plainly inadequate, or there is no reasonable basis for its traffic plan. Rosado v. City of New Rochelle, 197 AD3d 582, 583 (2d Dept. 2021); Rodriguez v. Palacio, 199 AD3d 728, 731 (2d Dept. 2021). To establish entitlement to this immunity, the municipality must first demonstrate that the relevant discretionary determination resulted from a “deliberative decision-making process.” Heins, supra, 180 AD3d at 1022; Iovine v. State of New York, 165 AD3d 766, 768 (2d Dept. 2018); Ramirez v. State of New York, 143 AD3d 880, 881 (2d Dept. 2016). A “deliberative” process involves invoking the expertise of qualified employees. Friedman v. State of New York, 67 NY2d 271, 285-286 (1986); Cohen, supra, 59 Misc 3d at 891. Furthermore, to be entitled to qualified immunity, the municipality must establish that “a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury.” Turturro v. City of New York, 28 NY3d 469, 480 (2016) Rosado, supra, 197 AD3d at 583; Tyberg v. City of New York, 173 AD3d 1239, 1240-1241 (2d Dept. 2019). This court finds that the City failed to sustain its prima facie burden on the issue of qualified immunity. While the City established that it had conducted a study of the subject intersection and concluded that a pedestrian traffic signal was warranted at the subject intersection, it did not demonstrate that the decision as to its exact location resulted from a “deliberative decision making process.” In particular, Huey, who is not an engineer, decided to change the location of the pedestrian traffic signal without consulting with a licensed engineer. This was in contravention of Section 1A.09 of the MUTCD, which mandates that the decision to use a particular device at a particular location should be made on the basis of either an engineering study or the application of engineering judgment. Rather, Huey based his decision to move the pole location after an electrical inspector informed him that road hardware prevented its placement at the corner. No consideration of the safety/engineering implications of the move appear to have been made. Furthermore, Christopher Hrones’ email stating that “a single pedestrian crossing on either the east or west side of Hudson would probably be sufficient” is inconclusive and does not establish a deliberative decision making process. Finally, the City did not establish that the NYC Dept. Of Transportation, Traffic and Planning Division entertained and passed on the very same question of risk that would go to the jury in this case, namely, the exact location of the pedestrian traffic signal. In light of the above, the City’s motion for summary judgment dismissing the complaint based on its entitlement to qualified immunity is denied. This constitutes the Decision and Order of the Court. Dated: July 25, 2022
