OMER v. The City of New York, Defendant-Respondent.

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Supreme Court, Appellate Division, First Department, New York.

Saada OMER, et al., Plaintiffs-Appellants, v. Luis J. RODRIGUEZ, Defendant, The City of New York, Defendant-Respondent.

Decided: May 16, 2002

TOM, J.P., SULLIVAN, ROSENBERGER, and FRIEDMAN, JJ. B. Jennifer Jaffee, for Plaintiffs-Appellants. Susan Choi-Hausman, for Defendant-Respondent.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered September 20, 2000, which, inter alia, granted defendant City of New York's cross motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

 Plaintiff was allegedly struck by a vehicle as she crossed East Fordham Road in the Bronx.   It is undisputed that, at the time of her accident, plaintiff was not crossing at a designated crosswalk.   She maintains nonetheless that the municipal defendant is responsible for her harm because it did not maintain a fence on the median opposite her as she crossed to deter her from crossing where she did.   This is not a viable theory of liability.   Whatever duty the City had to plaintiff as a pedestrian was satisfied by its provision of a designated crosswalk (see, Hamilton v. State of New York, 277 A.D.2d 982, 984, 716 N.Y.S.2d 529, lv. denied 96 N.Y.2d 704, 723 N.Y.S.2d 131, 746 N.E.2d 186).   In addition, the motion court properly found that there existed no triable issue of fact as to whether the absence of a median fence was a proximate cause of plaintiff's accident.   The conclusion of plaintiff's expert, that if the median had been fenced plaintiff would not have crossed where she did and instead would have crossed at a less hazardous location, was purely speculative and, as such, provided no basis for the denial of the City's cross motion (see, Torres v. Allied Tube & Conduit, 281 A.D.2d 243, 244, 721 N.Y.S.2d 655).