MEDLEY v. COUNTY OF WESTCHESTER

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

Shequela MEDLEY, appellant, v. COUNTY OF WESTCHESTER, respondent.

Decided: January 30, 2007

HOWARD MILLER, J.P., ROBERT A. SPOLZINO, STEVEN W. FISHER, and MARK C. DILLON, JJ. Martino & Weiss, Mount Vernon, N.Y. (Louis J. Martino of counsel), for appellant. Charlene M. Indelicato, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz and Thomas G. Gardiner of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered February 3, 2006, as granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion for summary judgment dismissing the complaint is denied.

The plaintiff was injured when a small picket fence approximately three feet in height collapsed and fell on her at the Playland Amusement Park in Rye, New York, an amusement park owned by the County of Westchester.   Although the County established, prima facie, that the fence in question had been properly maintained and was not defective, it failed to address the plaintiff's contention that one of the County's employees negligently caused the small fence to collapse by falling against it.   As the County's submission left unresolved material issues of fact regarding the negligence of its employee, the Supreme Court should have denied the County's motion for summary judgment dismissing the complaint (see Ayotte v. Gervasio, 81 N.Y.2d 1062, 601 N.Y.S.2d 463, 619 N.E.2d 400).

The plaintiff's remaining contention is without merit.

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