BATTEN v. Hemchan Rambaran et al., Defendants–Respondents. (2025)

Order, Supreme Court, New York County (Hasa A. Kingo, J.), entered March 15, 2024, which denied the motion of defendants The City of New York and Central Park Conservancy, Inc. (collectively, the City defendants) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

In this wrongful death action, the decedent was fatally hit by a speeding car in a pedestrian crosswalk.  It is undisputed that there was foliage in front of the crosswalk signal.  The City “has a nondelegable duty to keep its roads reasonably safe” (Brown v. State of New York, 31 N.Y.3d 514, 519, 80 N.Y.S.3d 665, 105 N.E.3d 1246 [2018]).  Foliage obstruction of traffic signs and signals may constitute negligent roadway maintenance (see Parada v. City of New York, 205 A.D.2d 427, 428–429, 613 N.Y.S.2d 630 [1st Dept. 1994];  see also Rivera v. Town of Wappinger, 164 A.D.3d 932, 934, 83 N.Y.S.3d 178 [2d Dept. 2018]).

The City defendants’ motion for summary judgment was properly denied because they failed to sustain their prima facie burden that they were either not negligent in maintaining the foliage around the pedestrian signal or that the obstruction of the signal was not a proximate cause of decedent's accident.  On their motion, the City defendants submitted the deposition testimony of a detective from the NYPD Collision Investigation Squad (CIS).  The detective testified that the obstructed crosswalk signal was a contributing factor to decedent's accident inasmuch as the signal was partly obscured by foliage.  According to the detective, visibility of the signal was also affected by changes to the natural lighting conditions at the time of the accident, because the sun was “continuing to go down.”  The detective's testimony, which was based on his investigation of the accident and review of the evidence, had a rational basis (see e.g. Matott v. Ward, 48 N.Y.2d 455, 461, 423 N.Y.S.2d 645, 399 N.E.2d 532 [1979]).

Given this testimony, the City defendants’ reliance on a photograph and video taken by CIS later that same day, which showed the subject crosswalk signal partly obstructed but with a white “walk” sign visible through the foliage, was insufficient to establish prima facie that the City defendants were entitled to judgment as a matter of law.  Because the City defendants failed to establish prima facie entitlement to judgment as a matter of law, denial of their motion is warranted regardless of the sufficiency of plaintiff's opposition papers (see Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]).

We have considered the City defendants’ remaining contentions and find them unavailing.