Foehner v. Bauer

126 A.D.2d 941, 511 N.Y.S.2d 987, 1987 N.Y. App. Div. LEXIS 42046

Opinion

—Order unanimously affirmed, without costs. Memorandum: On October 5, 1982, plaintiff William Foehner was injured when the car he was driving collided with a truck operated by defendant William Bauer at a rural intersection in the Town of Williamson (Town) in the County of Wayne (County). In addition to Bauer, plaintiffs sued the Town and the County alleging that the accident was caused by the presence of thick brush and foliage at the intersection which restricted the sight distances of approaching drivers. Since the record establishes that the County is responsible for maintaining the intersection, there is an issue of fact precluding summary judgment whether breach of that duty was a proximate cause of the accident (see, Smart v Wozniak, 58 AD2d 993, 994, lv denied 43 NY2d 643).

Special Term properly granted summary judgment to the Town, however, because although the Town may have occasionally mowed the grass at the intersection, there is no evidence in the record that the Town has any responsibility for cutting and removing the brush and foliage on the trees. (Appeal from order of Supreme Court, Wayne County, Patlow, J.—summary judgment.) Present—Callahan, J. P., Denman, Boomer, Green and Balio, JJ.