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Don’t Leave Them Any Opening on Summary Judgment (NY)

July 3, 2019

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<p style="text-align: justify;">The City of New York recently had a significant summary judgment motion victory reversed on appeal in the Second Department in <em><a href="">Tyberg v City of New York</a>. </em>An 8-year-old infant plaintiff was walking with his mother on his way to board his school bus when he darted away from her and ran into the side of a passing vehicle. While the driver and the City were granted summary judgment because plaintiff had darted out into traffic and there was no evidence of negligence on the driver’s part, the Appellate Division reversed as to the City.</p>
<p style="text-align: justify;">Plaintiff had pleaded, as an additional theory of liability, that the City ad negligently designed the traffic control system at the subject intersection. Although the City submitted evidence it had conducted studies of the intersection in 2005 and 2007 in response to citizen complaints and determined no traffic control device was necessary at the intersection, the Appellate Division ruled this was not sufficient to meet their burden, because those studies were performed in the summer, when nearby schools were not in session.</p>
<p style="text-align: justify;">To be sure, the question of qualified immunity for a municipality arising out of civil engineering is a fairly technical one, and the Court was particularly strict in its analysis here. However, lesson is a valuable one, in that defendants must consider every possible opening the Court may take to deny summary judgment, both in drafting the motion, and in considering settling a case even after winning summary judgment while the leverage is still strong. Instead, the City will have to try to persuade a jury not to give an award to an injured child on the basis of their engineers’ byzantine explanation for why the intersection is perfectly safe.</p>
<p style="text-align: justify;">Thanks to Nicholas Schaefer for his contribution to this post. Please email <a href="">Vito A. Pinto</a> with any questions.</p>

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