Curry v. County of Erie

233 A.D.2d 957, 649 N.Y.S.2d 897, 1996 N.Y. App. Div. LEXIS 13561

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 1996
• Status: Published

Opinion

Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied the motion of defendant Town of Concord (Town) for summary judgment dismissing the complaint against it. The proof submitted by plaintiff raises triable issues of fact with regard to her allegation that the Town was negligent in creating the hazardous accumulation of water that caused her accident. We reject the contention of the Town that the affidavit submitted by the owner of property adjacent to the accident site contains inadmissible opinion because he was not qualified as an expert. A review of the affidavit indicates that the property owner merely offered his personal observations and that "he did not advance any opinion requiring any particular expertise” (Hileman v Schmitt’s Garage, 58 AD2d 1029, 1030; see, Kapinos v Alvarado, 143 AD2d 332, 332-333).

We do not consider the Town’s alternative contention, raised for the first time on appeal, that summary judgment was improperly denied because plaintiff’s notice of claim was insufficient to enable the Town to conduct a proper and timely investigation of the accident (see, Teresta v City of New York, 304 NY 440, 443; Leone v City of Utica, 66 AD2d 463, 468, affd 49 NY2d 811). "[T]o obtain a reversal, a ground not stated in a motion before the trial court cannot be first urged on appeal as a reason why the motion should have been granted (Gilbert v City of New York, 173 App Div 359)” (Nelson v Times Sq. Stores Corp., 110 AD2d 691, appeal dismissed 67 NY2d 645). (Appeal from Order of Supreme Court, Erie County, Joslin, J.—Summary Judgment.) Present—Green, J. P., Pine, Lawton, Doerr and Boehm, JJ.