| O'Buckley v County of Chemung |
| 2011 NY Slip Op 07342 [88 AD3d 1140] |
| October 20, 2011 |
| Appellate Division, Third Department |
| Sharron L. O'Buckley, Individually and as Administrator of theEstate of Michael O'Buckley, Deceased, Appellant, v County of Chemung et al.,Respondents. |
—[*1] Sidney P. Cominsky, L.L.C., Syracuse (Sidney P. Cominsky of counsel), for appellant. Davidson & O'Mara, Elmira (Ransom P. Reynolds Jr. of counsel), for County of Chemung,respondent. Lippman O'Connor, Buffalo (Randolph Belkin of counsel), for Town of Southport,respondent.
Rose, J. Appeal from an order of the Supreme Court (O'Shea, J.), entered November 17,2010 in Chemung County, which, among other things, granted a motion by defendant County ofChemung for summary judgment and dismissed the complaint against both defendants.
Plaintiff, individually and as administrator of the estate of her deceased 17-year-old son,commenced this wrongful death action against defendants seeking damages resulting from aone-car motor vehicle accident. Decedent was driving north on County Route 26 (also known asChristian Hollow Road) in the Town of Southport, Chemung County when he lost control of hisvehicle on a downhill curve in the road, slid off the roadway and struck a tree in the front yard ofa residence at 471 Christian Hollow Road. Plaintiff claimed that there was an excessive amountof gravel on the roadway and alleged causes of action based upon, among other things,defendants' failure to maintain a safe and proper road, failure to post adequate warning signs andfailure to remove the tree or to construct a guardrail to prevent drivers from striking it. [*2]Decedent's 15-year-old passenger, Amber Cota, was injured in theaccident and her mother commenced a separate action against the same two defendants.
Defendant County of Chemung moved for summary judgment dismissing the complaintsagainst it in both this action and the Cota action, and plaintiff cross-moved for preclusionand issue resolution pursuant to CPLR 3126 based upon the County's alleged failure to respondto her disclosure demands. Defendant Town of Southport moved for summary judgmentdismissing the Cota complaint against it, but did not serve the motion papers uponplaintiff in this action and did not bring a separate motion for summary judgment seekingdismissal of plaintiff's complaint against it. Supreme Court then granted summary judgment tothe County and the Town in this action, dismissing the complaints against both defendants andconcluding that it was unnecessary to address plaintiff's cross motion for discovery sanctionsagainst the County. Plaintiff appeals.
Initially, although the County met its initial burden on its motion for summary judgment, weagree with plaintiff that, based on the testimony, photographs and expert affidavit submitted byplaintiff, questions of fact exist regarding the safety of the road, the adequacy of the signage,whether the County affirmatively created or had constructive notice of a dangerous condition,whether decedent was so familiar with the road as to absolve the County of liability and whetherdecedent's operation of the vehicle was the sole proximate cause of the accident (see Ferguson v Sheahan, 71 AD3d1207, 1210 [2010]; Hill v Town ofReading, 18 AD3d 913, 916 [2005]; Appelbaum v County of Sullivan, 222AD2d 987, 989 [1995]). Also, the County's reliance on the lack of any written notice of theclaimed defects is misplaced as prior written notice requirements do not apply to plaintiff'sclaims that the County affirmatively created the defective condition, failed to install a guardrailor otherwise remedy the danger presented by the tree and failed to install adequate signage (see Madden v Town of Greene, 64AD3d 1117, 1119 [2009]; Popoliziov County of Schenectady, 49 AD3d 1117, 1119 [2008]; Lugo v County ofEssex, 260 AD2d 711, 713 [1999]).
We also find no support for Supreme Court's conclusion that decedent was sufficientlyfamiliar with the roadway so as to supersede any negligence by the County as a matter of law(see Appelbaum v County of Sullivan, 222 AD2d at 990). The evidence merelyestablished that decedent, who did not live in the Town, had ridden with his mother on the roadon "many occasions" as a child and, under these circumstances, issues of fact remain as tocausation (see Alexander v Eldred, 63 NY2d 460, 468-469 [1984]; Race v Town of Orwell, 28 AD3d1112, 1113 [2006]; Barton v Town of Malone, 207 AD2d 602, 602-603 [1994];compare Atkinson v County of Oneida, 59 NY2d 840, 842 [1983]). Nor are we able toconclude that decedent's conduct was the sole proximate cause of the accident given the varyingevidence as to whether decedent was paying attention to the road, the lack of any conclusiveevidence offered as to the speed of the vehicle and the unresolved factual issues regarding thepresence of gravel on the roadway, adequacy of the warning sign and the potential dangerpresented by the tree (see Bailey vCounty of Tioga, 77 AD3d 1251, 1253 [2010]; Herzog v Schroeder, 9 AD3d 669, 670 [2004]; Appelbaum vCounty of Sullivan, 222 AD2d at 989).
As for the Town, it only sought dismissal of the Cota complaint and did not have amotion pending before Supreme Court in this action or serve the motion made in theCota action on plaintiff. The Town's contention that Supreme Court had the authority tosearch the record and dismiss plaintiff's complaint against it is unavailing (see CPLR3212 [b]), as the issue of the Town's liability to plaintiff was not before the court (seeDunham v Hilco Constr. Co., 89 NY2d [*3]425, 429-430[1996]; cf. Wells Fargo Bank Minn.,N.A. v Garrasi, 80 AD3d 1061, 1063 [2011]). Nor is there any evidence that SupremeCourt advised the parties that it would consider the Town's motion for summary judgment in theCota action as part of this action (see Berle v Buckley, 57 AD3d 1276, 1277 [2008]; White v LaFrance, 203 AD2d 765, 766-767 [1994], lv dismissed 84 NY2d 977 [1994]). Further,we are not persuaded by the Town's argument that Supreme Court's subsequent order addressingplaintiff's motion to reargue and the Town's cross motion for summary judgment renders theinstant appeal moot. The subsequent order did not independently grant summary judgment to theTown. Instead, it merely reaffirmed that plaintiff's complaint against the Town was dismissed aspart of the original order now on appeal.
Given our determination to reinstate plaintiff's complaint, the issues raised by her in her crossmotion are no longer academic and it should be remitted to Supreme Court for determination (see Seelinger v Town of Middletown,79 AD3d 1227, 1230 [2010]).
Peters, J.P., Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the order is modified,on the law, with costs to plaintiff, by reversing so much thereof as granted the motion forsummary judgment of defendant County of Chemung and dismissed the complaint against saiddefendant and defendant Town of Southport; said motion denied and matter remitted to theSupreme Court for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.