Opinion
CA 02-00404
October 1, 2002.
Appeal from an order of Supreme Court, Wyoming County (Griffith, J.), entered September 10, 2001, which denied defendant's motion seeking summary judgment dismissing the amended complaint.
CONGDON, FLAHERTY, O'CALLAGHAN, REID, DONLON, TRAVIS FISHLINGER, GARDEN CITY (KATHLEEN D. FOLEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
DAVID L. MURPHY, P.C., ROCHESTER (HOWARD A. BLOCH OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: PIGOTT, JR., P.J., GREEN, HAYES, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
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 defendant's motion seeking summary judgment dismissing the amended complaint. Contrary to defendant's contention, there is an issue of fact concerning the existence of a special relationship between Donald F. Lee (plaintiff) and defendant municipality ( see generally Cuffy v. City of New York, 69 N.Y.2d 255, 260; Burger v. County of Onondaga, 272 A.D.2d 965, lv denied 95 N.Y.2d 760). Also contrary to defendant's contentions, there are further issues of fact concerning proximate cause and whether the actions of an employee of New York State were intervening, superseding acts that severed any causal connection between plaintiff's injuries and defendant's alleged negligence ( see generally Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, rearg denied 52 N.Y.2d 784).