FILED: NEW YORK COUNTY CLERK 07/27/ :37 PM INDEX NO /2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/27/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X LISA WILDENBERGER and BRIAN CASHIN, Plaintiffs ' AFFIRMATION IN REPLY Index No: / against - File No: THE CITY OF NEW YORK, ROYALBENGAL TAXI CORP., and MAURICE MILLIEN, Defendants x STEPHEN MAZZALONGA, an attorney admitted to practice law in the State of New York and an Assistant Corporation Counsel of the City of New York, affirms the truth of the following under the penalties of perjury pursuant to CPLR 2106, upon information and belief based upon the records maintained in this office: 1. This reply affirmation is submitted in further support of the motion of Defendant, "City" THE CITY OF NEW YORK (hereinafter the "City"), seeking an Order pursuant to CPLR 3211(a)(7) dismissing the complaint and 3212 granting the City's motion for summary judgment. The City met its burden in its underlying motion for summary judgment and dismissal, having demonstrated that no special duty existed warranting a judgment in favor of the City. 2. In Opposition to the City's motion, Plaintiff contends that the traffic agent's function is not discretionary. However, this argument is unavailing, unsupported by the case law, and insufficient to defeat the City's prima facie showing. Therefore, the City's motion should be granted in its entirety. 1 of 6

2 I. THE CITY'S MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED IN ITS ENTIRETY. 1. In its underlying motion the City proved prima facie that it is entitled to summary judgment on the ground that no special duty existed between the City and Plaintiff. Thus, any opposing party has the burden to produce evidentiary proof in admissible form which sufficiently established the existence of a material issue of fact, necessitating a trial of the action. Zuckerman v. New York, 49 N.Y.2d 557 (1980). Granted all reasonable inferences and read in light of the admissible evidence, Plaintiff's Affirmation in Opposition fails to rebut the City's proven entitlement to dismissal of the instant claim. 2. Further, it should be noted that Plaintiff does not dispute the facts set forth by the City that no special relationship or duty existed between the parties, and thus, such argument should be deemed conceded. Accordingly, because there is no dispute that no special duty existed, the City's motion should be granted in its entirety. Plaintiff also does not dispute the City's argument that her Notice of Claim and Summons and Complaint do not properly plead/establish a special duty and such argument should be deemed conceded and the Court should look no further and grant the City's motion to for summary judgment. i. Because no special duty existed, the City's motion must be granted in its entirety. 3. As argued in the City's moving papers, and undisputed by Plaintiff in her Opposition, Plaintiff cannot satisfy the threshold requirement to suit, namely that a special duty was owed and that such duty was breached by the City. Plaintiff argues that the traffic agent in question was not exercising discretion when Plaintiff was waived into the intersection and therefore, the City's motion should not prevail. S_ee Plaintiff's Affirmation in Opposition. However, Plaintiff cannot establish that a special duty existed. Specifically, the Court in Valdez held that if a plaintiff cannot overcome the threshold burden of demonstrating that the defendant -2-2 of 6

3 owed the requisite special duty of care, there will be no occasion to address whether defendant can avoid liability by relying on the governmental function immunity defense. Valdez v. City, 18 N.Y.3d 69, 80 (2011) (emphasis added). If a plaintiff can establish a special duty, a negligence action challenging governmental action may proceed, but the municipality may defend the action by asserting a "governmental function" immunity defense. Valdez, 18 N.Y.3d at 75, Here, Plaintiff has failed to establish that any special duty existed, nor does she dispute the City's argument that none existed. Because a special duty does not, and did not, exist, Plaintiff's claims against the City must fail as she cannot prove a special duty was breached. ii. Plaintiff's argument that traffic agents did not exercise discretion is unavailing and insufficient to defeat the City's entitlement to summary judgment. 5. Plaintiff argues that the City's witness, Mr. Toro, testified that traffic agents do not exercise discretion. See Plaintiff's Affirmation in Opposition. Mr. Toro was questioned about "discretion" in order to obtain a legal conclusion by Plaintiff's counsel to which the City noted its objection on the record. Mr. Toro is a police officer and is not versed in the legalities of a discretionary governmental function, and said questions regarding discretion by Plaintiff's counsel is palpably improper as it calls for a legal conclusion that is better suited for the Courts to determine. Importantly, Mr. Toro is not a legal expert and is unable to refute or overturn substantial case law that has long held that traffic agents directing traffic is a discretionary governmental function. Specifically, Courts have rejected arguments similar to those made by Plaintiff that traffic control is not discretionary. See Miller v. City, 116 A.D.3d 829 (2d Dep't 2014) (holding that the City was not liable where traffic agent waved vehicle through a red light -3-3 of 6

4 that then collided with another vehicle; court found traffic enforcement to be a discretionary governmental function and immune from liability); See Bailey v. City, 102 A.D.3d » (13t Dep't 2013) (holding that traffic regulation is discretionary and entitled to governmental function.c(,6("d'»)(i immunity defense); See Lewis v. City, 82 A.D.3d 410 (13' Dep't 2011) (holding that the City of New York was entitled to governmental immunity where plaintiff was hit by a bus while crossing an intersection controlled by a traffic agent who waved bus into the intersection); See Santoro v. City, 17 A.D.3d 563 (2d Dep't ' 2005) (holding that the City is not liable for alleged failure to properly direct traffic). 6. Accordingly, it is well settled that, as a matter of law, directing traffic is a discretionary governmental function entitling the City to.the immunity defense. Nonetheless, Plaintiff has failed to rebut the argument that her pleadings are deficient and that no special duty was ever established. Therefore, the City need not raise this defense as Plaintiff has not met the threshold requirement to suit. 7. The City established prima facie in its underlying motion that (1) no special relationship under a governing statute existed, (2) no special relationship through the assumption of positive direction and control existed, and (3) the City did not voluntarily assume a special duty. Further, it is undisputed that Plaintiff's pleading are deficient and that no special duty existed. As such, the City respectfully submits that there are no issues of material fact regarding the City's non-liability in the instant action and therefore, summary judgment as a matter of law is clearly appropriate in this action. WHEREFORE the City of New York respectfully requests that its motion be granted in its entirety, that the Complaint and any cross claims be dismissed as against it, and -4-4 of 6

5 that the Clerk be directed to enter judgment in favor of the City, and for such other and further relief as this Court may deem just and proper. Dated: New York, New York June 28, 2018 By: t ph azzalonga ' As nt Corporation Cou sel l Church Street, 4d' F or ew York, New Yor 40 (212) / TO: MILLER EISENMAN & KANUCK, LLP Attorneys for Plaintiff 450 Seventh Avenue, Suite 1400 New York, New York GERBER 86 GERBER, PLLC Attorneys for Defendants Maurice Millien and Royalbengal Taxi Corp. 26 Court Street Brooklyn, New York of 6

6 Index No /2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LISA WILDENBERGER and BRIAN CASHIN, Plaintiffs, - against - THE CITY OF NEW YORK, ROYALBENGAL TAXI CORP. and MAURICE MILLIEN, AFFIRMATION IN REPLY ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Defendant The City of New York 100 Church Street New York, New York By: Stephen Mazzalonga Contact: Joshua Mitts Tel: (212) File No Due and timely service is hereby admitted. New York, N.Y...., Esq. Attorney for -6-6 of 6