Evans v. County of Erie

214 A.D.2d 1041, 626 N.Y.S.2d 910, 1995 N.Y. App. Div. LEXIS 6864

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 1995
• Status: Published

Opinion

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied the motion of defendant Town of Tonawanda (Town) for summary judgment. The Town, as owner of the ramp where plaintiff was injured, failed to submit proof in admissible form to demonstrate that it was not responsible for the alleged defective design of the ramp (see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 569; McGowan v Villa Maria Coll., 185 AD2d 674, 675). The court also properly denied the Town’s alternative request for partial summary judgment under CPLR article 16, wherein the Town asserted that it is not liable for any non-economic loss attributable to the Tonawanda Library System, provided the Town’s liability is 50% or less. That determination must await a jury verdict.

The court erred, however, in denying the motion of defendant County of Erie (County) for summary judgment dismissing the complaint against it. We have held that the Buffalo and Erie County. Public Library is not a department of the County of Erie, but is a distinct and separate corporation (see, Buffalo & Erie County Pub. Lib. v County of Erie, 171 AD2d 369, 372, affd 80 NY2d 938). The conclusory statement of plaintiff’s counsel that the County must have approved the alleged defective design of the ramp is unsupported by any evidence in the record, and is not sufficient to raise a triable issue of fact (see, Krieger v Krieger, 192 AD2d 1076, 1077). (Appeals from Order of Supreme Court, Erie County, Cos-grove, J.—Summary Judgment.) Present—Green, J. P., Law-ton, Wesley, Doerr and Davis, JJ.