Summary
In Schosek, the Court of Appeals found that there were issues of fact as to whether a defendant paving company had created or exacerbated a dangerous condition for drivers by temporarily halting its operations on a roadway, leaving a height differential of 4½ inches between the paved-portion of the roadway and a gravel shoulder.
Summary of this case from Boderick v. R.Y. Management Co.Opinion
No. 223 SSM 45.
Decided December 17, 2008.
APPEALS from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered July 3, 2008. The Appellate Division order, insofar as appealed from, with two Justices dissenting, affirmed an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J), which had granted defendant Amherst Paving, Inc.'s motion for summary judgment dismissing the complaint against it.
Plaintiffs commenced these actions seeking damages arising out of a motor vehicle accident that occurred after decedent driver allegedly lost control of her vehicle when she drove onto the shoulder of a roadway and attempted to return to the traveled portion of the roadway. Defendant paving company had contracted with defendant County to repave the roadway. The County had halted the paving operation in order to make unrelated repairs to the shoulder of the roadway, and at the time of the accident there was a height differential of approximately 4½ inches between the paved portion of the roadway and the gravel shoulder of the roadway.
Schosek v Amherst Paving, Inc., 53 AD3d 1037, reversed.
Michael L. Kobiolka, Eden, for Todd Schosek, appellant.
Michael G. Cooper, Hamburg, for Kelly Schosek, appellant.
Kenney Shelton Liptak Nowak LLP, Buffalo ( Brian MacDonald of counsel), for Amherst Paving, Inc., respondent.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order, insofar as appealed from, reversed, with costs, and that part of defendant Amherst Paving, Inc.'s motion that sought summary judgment dismissing the complaint against it denied. A triable issue of fact exists as to whether Amherst Paving created or exacerbated a dangerous condition.
Concur: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.