Kuchmeister v. City of Long Beach
| Decision Date | 12 October 2021 |
| Docket Number | 601056/2020,Mot. Seq. 001 |
| Citation | 2021 NY Slip Op 33764 (U) |
| Parties | LINDA KUCHMEISTER, Plaintiff, v. THE CITY OF LONG BEACH Defendant. |
| Court | New York Supreme Court |
DECISION AND ORDER
The following papers, in addition to any memoranda of law and/or statement of material facts submitted by the parties, were reviewed in preparing this Decision and Order:
In this action plaintiff, Linda Kuchmeister, seeks damages for injuries she sustained while attempting to avoid pedestrians who entered her bicycle "lane" as she was riding on the boardwalk in Long Beach, New York. Kuchmeister struck a movable sign located in the middle of the boardwalk and fell breaking her shoulder, after she was forced to swerve to avoid crashing into the pedestrians. The boardwalk bicycle "lane" is not physically segregated from the throngs of beachgoers and visitors utilizing the boardwalk and is not demarcated by painted lines. The City of Long Beach ("City") concedes that it received "a great deal of complaints," including in writing, that the bike "lane" constituted a dangerous condition for those on the boardwalk. Notwithstanding that this known dangerous condition allegedly has respited in injury, the City seeks summary judgment dismissing the complaint as against it pursuant to CPLR 3212. For the reasons set forth below, the motion is denied.
Kuchmeister's accident occurred in the morning on July 30, 2019, while she was riding her bicycle on the boardwalk. The boardwalk runs along the City's public beach for 2.2 miles and its average width is 52 feet. Prior to October 2012, there was an obvious bike lane on the boardwalk demarcated by painted white lines. After the boardwalk was destroyed by Superstorm Sandy, the boardwalk was rebuilt in 2013 using a different type of wood.[1] A representative of the City testified that testing of the new wood revealed that paint and thermal markings would not successfully adhere to it. As a result there is no obvious, distinct bike lane on the newly constructed boardwalk. The only demarcation of a bike lane' is a different direction of the wooden planks from the remainder of the boardwalk in a 12 foot section in the center of the boardwalk.
It is undisputed that movable bike lane signs were placed on the boardwalk by the City in 2017, at street entrances to the boardwalk, in an attempt to give notice of the existence of a bike "lane." Thomas Canner-a witness produced for deposition by the City-was at the time the City's superintendent of the beach, parks and the central maintenance department overseeing the daily operations of the boardwalk and the beach, but he was not consulted concerning the purchase or placement of the signs prior to their appearance. The decision to order and place the signs on the boardwalk was purportedly made by two City officials. No evidence has been submitted by the City reflecting that any study was conducted prior to the placement of the signs or that their use resulted from a reasoned policy determination.
The signs consist of a black, heavy base; a pole; and a green, rectangular sign mounted to the top of the pole that read "Bike Lane," with a picture of a bicycle. The bike lane signs were not permanently affixed to the boardwalk and the City had problems with people moving them. In addition, some of the signs were damaged from storms and people throwing them off the boardwalk. Eventually, the City had "less and less" signs, for a total of 14 (the: number counted by Kuchmeister according to her testimony; Canner believes there were originally 20 signs, but from purchase orders produced by the City it appears that 30 signs were purchased). There are no other lines, markings or signs which signify the bike "lane" or place pedestrians on notice of its existence on the boardwalk.
Joseph Febrezio, the Commissioner of Public Works for Long Beach, attests that the City did not receive any written notice of the signs being moved to the center of the bike path or of anyone riding into the signs. But Febrizio concedes that "[t]he City received a great deal of complaints, including written notice, that the lack of lines resulted in a dangerous condition inasmuch as the bicycle lanes were insufficiently demarked." Those complaints continued after the signs were utilized.
Kuchmeister's accident occurred when, without warning, a group of pedestrians entered the boardwalk from the beach and crossed into the bike "lane" in front of her. According to Kuchmeister, she swerved around the pedestrians to avoid crashing into them and in the process struck a sign located in the middle of the lane. Kuchmeister struck the rectangular portion of the sign. Upon contact, Kuchmeister flew off her bicycle onto the ground, fracturing her shoulder.
Kuchmeister alleges that the City failed to safely design the use of the boardwalk to ensure that pedestrians did not interfere with the safe riding of bicycles (and vice a versa). Further, Kuchmeister asserts that the City created a dangerous condition by placing movable bike lane signs in or around cyclists' course of travel on the bike path and utilizing signs without "flexible breakaway bases," as recommended by the manufacturer.
The City contends that it cannot be held liable for this accident because: (i) the City is shielded by immunity from liability for its design of the boardwalk and decision to use the subject bike lane signs to demarcate the bike lane; (ii) the sign that plaintiff rode into was • open and obvious and not inherently dangerous; and (iii) even this condition was dangerous, the City did not receive prior written notice of it, a condition precedent to maintaining a cause of action against the City pursuant to section 256A(1) of the City's Charter,
It is the movant who has the burden to establish his/her entitlement to summary judgment as a matter of law. Ferrante v. American Lung Assn., 90 N.Y.2d 623 (1997). "CPLR 3212(b) requires the proponent of a motion for summary judgment to demonstrate the absence of genuine issues of material facts oh every relevant issue raised by the pleadings, including any affirmative defenses." Stone v. Continental Ins. Co., 234 A.I).2d 282, 284 (2d Dept. 1996). "In determining a motion for summary judgment, evidence must be viewed in a light most favorable to the nonmoving party, and ail reasonable inferences must be resolved in favor of the nonmoying party." Adams v Bruno, 124 A.D.3d 566 (2d Dept. 2015).
Where the movant fails to meet his initial burden, the motion for summary judgment should be denied. US Bank N.A v. Weinman, 123 A.D.3d 1108 (2d Dept. 2014). Once a movant has shown a prima facie right to summaty judgment, the burden shifts to the opposing party to show that a factual dispute exists requiring a trial, and such facts presented by the opposing p...
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