Gould v. County of Orleans

Order unanimously affirmed, with costs. Memorandum: Special Term properly denied the motion of defendant County of Orleans for summary judgment in these actions which arose out of a two-car head-on collision inside a one-lane tunnel beneath the Barge Canal on Culvert Road, a county highway in Orleans County. The county first contends that the underpass is owned and maintained by the State of New York and that it has no duty to install appropriate warning signs and traffic control devices on the approaches to the underpass. At this stage of the proceedings, the proof is not sufficiently developed to resolve the issue. If the proof at trial shows that the State owned the underpass and assumed full control of the posting and maintenance of warning signs and traffic control devices, then the county might be relieved of any duty with respect to the erection and maintenance of such devices (see, Ball v County of Monroe, 79 AD2d 878, lv denied 52 NY2d 706). Further, the case of Alexander v Eldred (63 NY2d 460) is dispositive of the remaining arguments of the county (1) that the lack of warning signs was not a proximate cause of the accident and (2) that its Local Laws, 1977, No. 3 required, inter alia, prior written notice of defects in highways, bridges and culverts before liability resulting from such condition may be imposed. (Appeal from order of Supreme Court, Monroe County, Patlow, J.—summary judgment.) Present—Dillon, P. J., Doerr, O’Donnell, Pine and Schnepp, JJ.