| Costanzo v County of Chautauqua |
| 2013 NY Slip Op 06475 [110 AD3d 1473] |
| October 4, 2013 |
| Appellate Division, Fourth Department |
| Elizabeth Costanzo, Respondent, v County of Chautauqua,Appellant, et al., Defendant. |
—[*1] Greco Trapp, PLLC, Buffalo (Duane D. Schoonmaker of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Chautauqua County (James H. Dillon,J.), entered September 14, 2012 in a personal injury action. The order denied the crossmotion of defendant County of Chautauqua for summary judgment dismissing thecomplaint against it.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this action seeking damages for injuries shesustained when her vehicle was struck by a vehicle operated by Paul L. Rosage(decedent) at the intersection of Route 5, a state road, and Van Buren Road, a countyroad, in Chautauqua County. Decedent's vehicle hit the driver's side of plaintiff's vehiclewhen plaintiff, after stopping at a stop sign on Van Buren Road, drove the vehiclethrough the intersection and into the path of decedent's vehicle, which was travelingeastbound on Route 5. It is undisputed that decedent was not subject to any trafficcontrol devices at the intersection and thus had the right-of-way. According to plaintiff,defendant County of Chautauqua (County) was negligent in, inter alia, "causing andcreating an unsafe intersection." We conclude that Supreme Court properly denied theCounty's cross motion for summary judgment dismissing the complaint against itinasmuch as it failed to meet its initial burden of establishing its entitlement to judgmentas a matter of law (see generally Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]). The County's cross motion was based in part on the affidavit ofa transportation engineer who offered his opinion as an accident reconstruction expert.We conclude that the affidavit was speculative and conclusory inasmuch as the expertfailed to submit the data upon which he based his opinions, and thus the affidavit had noprobative value (see Lillie vWilmorite, Inc., 92 AD3d 1221, 1222 [2012]; Schuster v Dukarm, 38 AD3d1358, 1359 [2007]). We reject the County's further contention that it cannot be heldliable as a matter of law for this accident because it does not control the intersection of acounty road and a state road (see Vehicle and Traffic Law § 1621 [a]).Lastly, the County's contention that it cannot be held liable because it did not have priorwritten notice of the allegedly defective intersection is without merit given that plaintiffalleges that the County created the allegedly unsafe condition (see generally Amabilev City of Buffalo, 93 NY2d 471, 474 [1999]). Present—Scudder, P.J., Fahey,Sconiers and Valentino, JJ.