Opinion
343 CA 15-01126.
04-29-2016
Dwight LAND, III, Plaintiff–Respondent, v. COUNTY OF ERIE, Defendant–Appellant, and James Paycheck, Defendant.
Michael A. Siragusa, County Attorney, Buffalo (Shawn P. Hennessy of Counsel), for Defendant–Appellant. Philip A. Milch, Buffalo, for Plaintiff–Respondent.
Michael A. Siragusa, County Attorney, Buffalo (Shawn P. Hennessy of Counsel), for Defendant–Appellant.
Philip A. Milch, Buffalo, for Plaintiff–Respondent.
PRESENT: SMITH, J.P., DeJOSEPH, NEMOYER, AND SCUDDER, JJ.
Opinion
MEMORANDUM: Plaintiff commenced these consolidated negligence actions seeking damages for injuries he allegedly sustained in a motor vehicle accident. We conclude that Supreme Court properly denied the motion of defendant County of Erie (County) for summary judgment dismissing the complaint and all cross claims against it. Plaintiff alleged that the County was negligent in, inter alia, the design, construction, maintenance and operation of the intersection where the accident occurred. “It is well settled that a municipality has a duty ‘to construct and maintain its highways in a reasonably safe condition, taking into account such factors as the traffic conditions apprehended, the terrain encountered and fiscal practicality’ ” (Demesmin v. Town of Islip, 147 A.D.2d 519, 520, 537 N.Y.S.2d 605, quoting Gutelle v. City of New York, 55 N.Y.2d 794, 795, 447 N.Y.S.2d 422, 432 N.E.2d 124 ; see Slate v. Town of Antwerp, 278 A.D.2d 857, 857, 721 N.Y.S.2d 431 ). In support of its motion, the County failed to establish either that it was not negligent or “that the accident would have occurred regardless of the condition of the” allegedly dangerous road (Endieveri v. County of Oneida, 35 A.D.3d 1268, 1269, 830 N.Y.S.2d 397 ; see Miller v. Howard, 134 A.D.3d 1537, 1537–1538, 24 N.Y.S.3d 462 ). The County further contends that it owes a duty of care only to those persons who obey the rules of the road and, because the court previously determined that plaintiff was negligent, it owed no duty of care to plaintiff. We reject that contention. “No meaningful legal distinction can be made between a traveler who uses [an intersection] with justification and one who uses it negligently insofar as how such conduct relates to whom a duty is owed to maintain the [intersection]. The comparative fault of the driver, of course, is relevant to apportioning liability” (Bottalico v. State of New
York, 59 N.Y.2d 302, 306, 464 N.Y.S.2d 707, 451 N.E.2d 454 ; see generally Stiuso v. City of New York, 87 N.Y.2d 889, 890–891, 639 N.Y.S.2d 1009, 663 N.E.2d 321 ; Green v. County of Allegany, 300 A.D.2d 1077, 1077, 752 N.Y.S.2d 487 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.