Opinion
2011-09-20
Arlene GOLDSTEIN, respondent,v.TOWN OF WARWICK, appellant.
Gambeski & Frum, Elmsford, N.Y. (H. Malcolm Stewart of counsel), for appellant.Patrick S. Owen, PLLC, Goshen, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Orange County (McGuirk, J.), entered June 17, 2010, as denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendant contends that the plaintiff's negligent operation of her vehicle was the sole proximate cause of the accident. Although this contention was argued for the first time in the defendant's reply papers in support of its motion for summary judgment, this Court may address the issue because the plaintiff had the opportunity to respond in surreply ( see Matter of Hayden v. County of Nassau, 16 A.D.3d 415, 790 N.Y.S.2d 404; Teplitskaya v. 3096 Owners Corp., 289 A.D.2d 477, 735 N.Y.S.2d 585; Basile v. Grand Union Co., 196 A.D.2d 836, 602 N.Y.S.2d 30). In support of its motion, the Town failed to submit evidence sufficient to establish, prima facie, that the absence of a guardrail at the accident site was not a proximate cause of the accident. As the Town submitted conflicting factual evidence, it cannot be said as a matter of law that the plaintiff's alleged negligent operation of her vehicle was the sole proximate cause of the accident ( cf. Sherwood v. State of New York, 238 A.D.2d 396, 657 N.Y.S.2d 336; Muhlrad v. Town of Goshen, 231 A.D.2d 615, 647 N.Y.S.2d 975). Since the Town failed to meet its initial burden as the movant, it is not necessary to review the sufficiency of the plaintiff's opposition 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).
Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.
DILLON, J.P., ANGIOLILLO, DICKERSON and COHEN, JJ., concur.