Opinion
2013-10-4
Elizabeth COSTANZO, Plaintiff–Respondent, v. COUNTY OF CHAUTAUQUA, Defendant–Appellant, et al., Defendant.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Thomas J. Speyer of Counsel), for Defendant–Appellant. Greco Trapp, PLLC, Buffalo (Duane D. Schoonmaker of Counsel), for Plaintiff–Respondent.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Thomas J. Speyer of Counsel), for Defendant–Appellant. Greco Trapp, PLLC, Buffalo (Duane D. Schoonmaker of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS AND VALENTINO, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries she sustained when her vehicle was struck by a vehicle operated by Paul L. Rosage (decedent) at the intersection of Route 5, a state road, and Van Buren Road, a county road, in Chautauqua County. Decedent's vehicle hit the driver's side of plaintiff's vehicle when plaintiff, after stopping at a stop sign on Van Buren Road, drove the vehicle through the intersection and into the path of decedent's vehicle, which was traveling eastbound on Route 5. It is undisputed that decedent was not subject to any traffic control devices at the intersection and thus had the right-of-way. According to plaintiff, defendant County of Chautauqua (County) was negligent in, inter alia, “causing and creating an unsafe intersection.” We conclude that Supreme Court properly denied the County's cross motion for summary judgment dismissing the complaint against it inasmuch as it failed to meet its initial burden of establishing its entitlement to judgment as a matter of law ( see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). The County's cross motion was based in part on the affidavit of a transportation engineer who offered his opinion as an accident reconstruction expert. We conclude that the affidavit was speculative and conclusory inasmuch as the expert failed to submit the data upon which he based his opinions, and thus the affidavit had no probative value ( see Lillie v. Wilmorite, Inc., 92 A.D.3d 1221, 1222, 938 N.Y.S.2d 396;Schuster v. Dukarm, 38 A.D.3d 1358, 1359, 831 N.Y.S.2d 619). We reject the County's further contention that it cannot be held liable as a matter of law for this accident because it does not control the intersection of a county road and a state road ( seeVehicle and Traffic Law § 1621[a] ). Lastly, the County's contention that it cannot be held liable because it did not have prior written notice of the allegedly defective intersection is without merit given that plaintiff alleges that the County created the allegedly unsafe condition ( see generally Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.