Opinion
2014-01-29
Daniel SERVELLI, appellant, v. COUNTY OF WESTCHESTER, respondent, et al., defendants.
Friedman & Simon, LLP, Jericho, N.Y. (Lauren Cristofano of counsel), for appellant. Robert F. Meehan, County Attorney, White Plains, N.Y. (James Castro–Blanco and Thomas G. Gardiner of counsel), for respondent.
Friedman & Simon, LLP, Jericho, N.Y. (Lauren Cristofano of counsel), for appellant. Robert F. Meehan, County Attorney, White Plains, N.Y. (James Castro–Blanco and Thomas G. Gardiner of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Giacomo, J.), entered May 22, 2012, as granted the motion of the defendant County of Westchester for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant County of Westchester for summary judgment dismissing the complaint insofar as asserted against it is denied.
The plaintiff was injured when he was involved in a multi-car accident on the Central Westchester Parkway (hereinafter the Parkway). The accident occurred after a tractor trailer, belonging to the defendant Mako Transport, Inc., and driven by the defendant Frank Singh, struck an overhead pedestrian bridge. The plaintiff commenced this action against, among others, the County of Westchester (hereinafter the County), alleging, inter alia, that the County was negligent in allowing over-sized trucks on the Parkway and in failing to have clear signs on the Parkway indicating that overhead clearance on the Parkway was limited.
The County established, prima facie, that it lacked actual notice of the allegedly dangerous condition ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). However, under the particular circumstances of this case, including the County's submission of evidence of multiple prior accidents at the same location, the County failed to establish, prima facie, that it lacked constructive notice of the allegedly dangerous condition ( see Hyde v. County of Rensselaer, 51 N.Y.2d 927, 929, 434 N.Y.S.2d 984, 415 N.E.2d 972; Kane v. Triborough Bridge & Tunnel Auth., 64 A.D.3d 544, 545, 883 N.Y.S.2d 545; Sideris v. Town of Huntington, 240 A.D.2d 652, 659 N.Y.S.2d 1017). Since the County failed to meet its prima facie burden, its motion should have been denied without considering 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 erred in granting the County's motion for summary judgment dismissing the complaint insofar as asserted against it. MASTRO, J.P., CHAMBERS, LOTT and MILLER, JJ., concur.