CALDERONE v. TOWN OF CORTLANDT

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

Rogelio CALDERONE, et al., respondents, v. TOWN OF CORTLANDT, appellant.

Decided: February 28, 2005

DANIEL F. LUCIANO, J.P., STEPHEN G. CRANE, STEVEN W. FISHER, and ROBERT A. LIFSON, JJ. Boeggeman, George, Hodges & Corde, P.C., White Plains, N.Y. (Leslie K. Arfine of counsel), for appellant. Lynn Law Office (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Christopher J. Crawford] of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Westchester County (LaCava, J.), entered November 26, 2003, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The plaintiff Rogelio Calderone was injured when the truck in which he was a passenger left the roadway and hit a utility pole in the Town of Cortlandt.   He alleges that a defect or dangerous condition in the pavement caused the truck driver to lose control, resulting in the accident.   The defendant moved for summary judgment dismissing the complaint on the ground that the condition of the roadway was not a proximate cause of the accident.   The defendant did not submit any evidence to establish, prima facie, that the roadway was in a reasonably safe condition (cf. Tomassi v. Town of Union, 46 N.Y.2d 91, 97, 412 N.Y.S.2d 842, 385 N.E.2d 581), but instead pointed to alleged contradictions and gaps in the plaintiff's proof.  “ ‘As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense’ ” (Mennerich v. Esposito, 4 A.D.3d 399, 400, 772 N.Y.S.2d 91, quoting Larkin Trucking Co. v. Lisbon Tire Mart, 185 A.D.2d 614, 615, 585 N.Y.S.2d 894).   Here, the evidence tendered by the defendant in support of its motion left unresolved a number of triable issues of fact regarding, inter alia, the speed of the truck, whether a second vehicle may have been involved in the accident, and the condition of the roadway in the vicinity of the accident site.   Accordingly, the defendant failed to establish its prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Risco v. State of New York, 13 A.D.3d 605, 786 N.Y.S.2d 359), and the Supreme Court properly denied its motion for summary judgment dismissing the complaint regardless of the sufficiency of the plaintiffs' opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

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