RACE v. TOWN OF ORWELL

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

Georgia RACE, Plaintiff-Appellant, v. TOWN OF ORWELL, Defendant-Respondent.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ. Amdursky, Pelky, Fennell & Wallen, P.C., Oswego (Timothy J. Fennell Of Counsel), for Plaintiff-appellant. Lynch Law Office, Syracuse (Craig S. Better Of Counsel), for Defendant-Respondent.

Plaintiff commenced this action to recover for injuries she sustained in defendant, Town of Orwell, when she failed to negotiate an unmarked curve and drove her vehicle off the road and into an embankment.   In the complaint, plaintiff alleged that defendant was negligent in failing to post or maintain adequate signs warning of the dangerous condition of the road where the accident occurred.   We agree with plaintiff that Supreme Court erred in granting defendant's motion for summary judgment dismissing the complaint.   Even assuming, arguendo, that defendant met its initial burden on the motion, we conclude that plaintiff raised an issue of fact to defeat the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   In opposition to the motion, plaintiff submitted the affidavit of a professional engineer opining that curve signs should have been placed at the accident location, and she submitted an affidavit in which she asserted that she was “not intimately familiar” with the roadway, having traveled it on only three prior occasions at night.   We thus conclude that the court erred in determining as a matter of law that defendant's failure to post or to maintain adequate signage was not a proximate cause of the accident.   Rather, we conclude that there is an issue of fact whether plaintiff's “familiarity [with the road at issue] superseded any negligence” on the part of defendant (Barton v. Town of Malone, 207 A.D.2d 602, 603, 615 N.Y.S.2d 515;  see also Alexander v. Eldred, 63 N.Y.2d 460, 468-469, 483 N.Y.S.2d 168, 472 N.E.2d 996).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.

MEMORANDUM: