BRYER v. County of Niagara, Defendant-Appellant. (2006)

Supreme Court, Appellate Division, Fourth Department, New York.

Maureen BRYER, Plaintiff-Respondent, v. TOWN OF WILSON, et al., Defendants, County of Niagara, Defendant-Appellant.

Decided: December 22, 2006

PRESENT: SCUDDER, P.J., HURLBUTT, GORSKI, MARTOCHE, AND SMITH, JJ.

Hurwitz & Fine, P.C., Buffalo (Scott C. Billman of Counsel), for Defendant-Appellant. Spadafora & Verrastro, LLP, Buffalo (Mitchell M. Matusick of Counsel), for Plaintiff-Respondent.

Supreme Court properly denied that part of the cross motion of defendant County of Niagara (County) for summary judgment dismissing the complaint against it insofar as the complaint alleges that the County had constructive notice of the dangerous condition of the roadway. In opposition to the County's cross motion, plaintiff submitted an expert affidavit in which the expert opined that the scouring and unsafe condition of the bridge should have been apparent on any reasonable inspection for at least five years, a sufficient length of time prior to the accident to have permitted the County's employees to discover and remedy it (see Tanner W. v. County of Onondaga, 225 A.D.2d 1074, 639 N.Y.S.2d 598). Thus, even assuming, arguendo, that the County met its initial burden on the cross motion with respect to whether it had constructive notice, we conclude that plaintiff raised a triable issue of fact with respect to that issue.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM:

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