Cumpston v. Marcinkowska

275 A.D.2d 340, 712 N.Y.S.2d 425, 2000 N.Y. App. Div. LEXIS 8688

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 14, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendant County of Rock-land appeals from so much of an order of the Supreme Court, Rockland County (Sherwood, J.), dated June 30, 1999, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it with leave to renew.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff was injured when he was struck by a car as he was walking across a roadway in the County of Rockland. The Supreme Court properly denied the County’s motion for summary judgment with leave to renew upon completion of the deposition of the defendant driver (see generally, Groves v Land’s End Hous. Co., 80 NY2d 978; Johnson v Verrilli, 139 AD2d 497). Contrary to the County’s contention, under the circumstances of this case and at this stage of the proceedings, it cannot be concluded as a matter of law that the plaintiffs familiarity with the • accident site precludes a finding of liability against it (see, Scheemaker v State of New York, 70 NY2d 985; Owens v City of Syracuse, 258 AD2d 898; cf., Atkinson v County of Oneida, 59 NY2d 840).

We have not considered the County’s argument concerning the adequacy of the plaintiffs notice of claim. This argument was improperly raised for the first time in the County’s papers in reply to the plaintiffs opposition to its motion for summary judgment (see, Fischer v Weiland, 241 AD2d 439). Santucci, J. P., McGinity, Luciano and Schmidt, JJ., concur.