Lizzio v. County of Onondaga

170 A.D.2d 1000, 566 N.Y.S.2d 900, 1991 N.Y. App. Div. LEXIS 1736

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1991
• Status: Published

Opinion

Order unanimously affirmed with costs. Memorandum: Plaintiff was injured when the car in which he was riding left a county highway and struck a bridge retaining wall. Supreme Court properly denied the portion of defendant’s motion for summary judgment seeking dismissal of plaintiff’s cause of action for negligent maintenance of the wall. On this record, there is a triable issue of fact whether the County’s maintenance of the wall was a substantial factor in aggravating plaintiff’s injuries (see, Gutelle v City of New York, 55 NY2d 794, 796; Kirisits v State of New York, 107 AD2d 156, 158; Pontello v County of Onondaga, 94 AD2d 427, 431-432, lv dismissed 60 NY2d 1015). We note only that summary judgment is rarely granted in negligence cases (Andre v Pomeroy, 35 NY2d 361, 364-365) and that proximate cause is almost always a triable issue of fact (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 314-315). (Appeal from Order of Supreme Court, Onondaga County, Reagan, J.—Summary Judgment.) Present—Doerr, J. P., Denman, Boomer, Green and Pine, JJ.