Bryer v. Town of Wilson

Appeal from an order of the Supreme Court, Niagara County (John M. Curran, J.), entered February 9, 2006 in a personal injury action. The order, insofar as appealed from, denied in part the cross motion of defendant County of Niagara for summary judgment dismissing the complaint and cross claims against it. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Supreme Court properly denied that part of the cross motion of defendant County of Niagara (County) for summary judgment dismissing the complaint against it insofar as the complaint alleges that the County had constructive notice of the dangerous condition of the roadway. In opposition to the County’s cross motion, plaintiff submitted an expert affidavit in which the expert opined that the scouring and unsafe condition of the bridge should have been apparent on any reasonable inspection for at least five years, a sufficient length of time prior to the accident to have permitted the County’s em 1236 ployees to discover and remedy it (see Tanner W. v County of Onondaga, 225 AD2d 1074 [1996]). Thus, even assuming, arguendo, that the County met its initial burden on the cross motion with respect to whether it had constructive notice, we conclude that plaintiff raised a triable issue of fact with respect to that issue. Present—Scudder, EJ., Hurlbutt, Gorski, Martoche and Smith, JJ.