The City established prima facie that it adequately designed, constructed, and maintained its roadway in a reasonably safe condition, including the median barrier at issue. Plaintiff's expert opined that good and accepted engineering and transportation industry safety practices required that the barrier have reflective tape or paint on it and that the opening be enlarged or the crosswalk narrowed. However, the opinion is unsupported by a published standard or evidence that the practices are generally accepted. Moreover, plaintiff's photograph, which purported to show the lighting conditions on the night of the accident, was unauthenticated, as plaintiff failed to aver that the photograph was taken at the actual location, he had disclaimed having any photographs of the location at his deposition 18 months after the accident, and another witness testified that he was unsure which intersection was depicted.
Warshak v. City of New York, NY Slip Op 06974 (1st Dep't December 14, 2021)
