PHIPPS v. County of Allegany, Defendant-Respondent.

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

Jonathon PHIPPS, Plaintiff-Appellant, v. Andrew P. MICHALAK, Norbert J. Michalak, Defendants-Appellants, County of Allegany, Defendant-Respondent.

Decided: December 31, 2008

PRESENT:  MARTOCHE, J.P., SMITH, CENTRA, PERADOTTO, AND PINE, JJ. The Carey Firm, LLC, Buffalo (Shawn W. Carey of Counsel), for Plaintiff-Appellant. Gibson, McAskill & Crosby, LLP, Buffalo (Norman B. Viti, Jr., of Counsel), for Defendants-Appellants. Colucci & Gallaher, P.C., Buffalo (Todd C. Bushway of Counsel), for Defendant-Respondent.

 Plaintiff commenced this action seeking damages for injuries he sustained when the driver of the vehicle in which he was a passenger lost control of the vehicle and drove onto the shoulder of a roadway in defendant County of Allegany (County).   The vehicle then rolled over on the passenger side and struck a driveway culvert.   We agree with plaintiff that Supreme Court erred in granting the motion of the County for summary judgment dismissing the complaint and cross claim against it and in denying the cross motion of plaintiff for leave to amend his bill of particulars.   With respect to the County's motion, there is an issue of fact on the record before us with respect to the County's alleged negligence in failing to maintain the roadway, including the shoulder of the roadway, in a reasonably safe condition (see Stiuso v. City of New York, 87 N.Y.2d 889, 890-891, 639 N.Y.S.2d 1009, 663 N.E.2d 321;  Carollo v. Town of Colden, 27 A.D.3d 1077, 1078, 811 N.Y.S.2d 543).   Even assuming, arguendo, that the vehicle initially left the roadway based on the driver's negligence, we conclude that a jury could nevertheless infer that the County's negligence caused the vehicle to roll over and to strike a driveway culvert.   There is thus an issue of fact on the record before us with respect to the County's liability, inasmuch as a jury could infer that the County's negligence was “a substantial factor in producing” plaintiff's injuries (Pontello v. County of Onondaga, 94 A.D.2d 427, 431, 464 N.Y.S.2d 891, appeal dismissed 60 N.Y.2d 560, 471 N.Y.S.2d 1028, 459 N.E.2d 196, lv. dismissed 60 N.Y.2d 1015).

 With respect to plaintiff's cross motion, we conclude that the court should have permitted plaintiff to amend his bill of particulars to include, inter alia, specified theories of liability in accordance with the affidavit of plaintiff's expert engineer.  “ ‘Mere lateness is not a barrier to the amendment.   It must be lateness coupled with significant prejudice to the other side’ ” (Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164), and here there is no such prejudice to the County.

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is denied, the complaint and cross claim against defendant County of Allegany are reinstated, and the cross motion is granted.

MEMORANDUM: