Gerhart v. Town of Manchester

Order unanimously affirmed, with costs. Memorandum: As plaintiff was traveling around a "sharp” curve in a highway in the Town of Hopewell, his motorcycle collided with a truck approaching from the opposite direction. On this appeal from an order denying its motion for summary judgment, defendant town argues that plaintiff has failed to show that the town was negligent and that its negligence, if any, was a proximate cause of the accident. This argument places the burden in a summary judgment motion upon the wrong party. "A defendant moving for summary judgment must first present evidence establishing that plaintiff has no cause of action before the plaintiff is called upon to present evidence raising a question of fact” (Hayes v Riccardi, 97 AD2d 954; see, Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Here, since defendant has not demonstrated that the roadway was reasonably safe for motorists or that any unsafe condition was not the proximate cause of the accident, plaintiff was not obliged, on this motion, to submit evidence establishing his case. We reject defendant’s contention that the Statute of Limitations bars any claim for negligent design of the highway. (Appeal [33] from order of Supreme Court, Ontario County, Contiguglia, J.— summary judgment.) Present — Dillon, P. J., Doerr, Denman, Boomer and Schnepp, JJ.