| Smith v County of Orange |
| 2008 NY Slip Op 04860 [51 AD3d 1006] |
| May 27, 2008 |
| Appellate Division, Second Department |
| Dominique Smith, Respondent, v County of Orange,Appellant, et al., Defendant. |
—[*1] Steven M. Melley, Rhinebeck, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant County of Orangeappeals from so much of an order of the Supreme Court, Orange County (McGuirk, J.), datedFebruary 19, 2007, as denied its motion for summary judgment dismissing the complaint insofaras asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant County of Orange established its prima facie entitlement to judgment as amatter of law by demonstrating that it did not have prior written notice of the allegedly dangerouscondition that purportedly caused the plaintiff's fall, as required by Local Law No. 3 (1978) ofOrange County (see Delgado v County of Suffolk, 40 AD3d 575 [2007]). However, theplaintiff's opposition papers raised a triable issue of fact regarding whether the ice upon whichthe plaintiff slipped was formed when snow piles created by the County's snow removal effortsmelted and refroze (see Ricca v Ahmad, 40 AD3d 728, 729 [2007]; Knee v TrumpVil. Constr. Corp., 15 AD3d 545, 546 [2005]).
The County's contention that the plaintiff raised a new theory of liability in her oppositionpapers not contained in her notice of claim was improperly raised for the first time in its replypapers, and the plaintiff did not have a fair opportunity to address this issue. Thus, reversal is notwarranted for that reason alone (see McCarthy v City of New York, 5 AD3d 445, 446[2004]). In any event, this [*2]contention is without merit, sincethe plaintiff alleged in her notice of claim that the County created the dangerous condition(see Streletskaya v New York City Tr. Auth., 27 AD3d 640, 641-642 [2006]; cf.Semprini v Village of Southampton, 48 AD3d 543 [2008]). Rivera, J.P., Covello, Angiolilloand McCarthy, JJ., concur.