Gattone v. Conlan

Nov 12, 2002
Versions:299 A.D.2d 394
749 N.Y.S.2d 560

In an action to recover damages for personal injuries, the defendant Town of Putnam Valley appeals from an order of the Supreme Court, Putnam County (Hickman, J.), dated January 3, 2002, which denied its motion for summary judgment dismissing the complaint and cross claims insofar as asserted against it.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint and cross claims are dismissed insofar as asserted against the defendant Town of Putnam Valley, and the action against the remaining defendant is severed.

The plaintiff rode his motorcycle over a hill on a road and observed a vehicle backing out of a driveway blocking both lanes of traffic. The plaintiff was injured when he was unable to avoid the vehicle and a collision occurred. During his deposition, the plaintiff admitted that he traveled that part of the road a minimum of twice a day for at least 20 months before the accident, and was aware of the driveway.

Under these circumstances, the plaintiff’s awareness of the *395driveway eliminated the absence of warning signs as a proximate cause of the accident (see Gilberto v Town of Plattekill, 279 AD2d 863; Vasquez v Consolidated Rail Corp., 180 AD2d 247; cf. Boyd v Trent, 262 AD2d 260; see generally Atkinson v County of Oneida, 59 NY2d 840). Moreover, the plaintiffs allegation that if an advisory speed limit of 20 miles per hour had been posted immediately preceding the accident site he would have driven even more slowly, is conclusory and failed to raise a triable issue of fact (see Gilberto v Town of Plattekill, supra at 865). In view of the foregoing, the opinion of the plaintiffs expert was irrelevant (see Gilberto v Town of Plattekill, supra at 865). Accordingly, after the defendant Town of Putnam Valley established its prima facie entitlement to summary judgment, the plaintiff failed to raise a triable issue of fact. Therefore, the Supreme Court erred in denying the motion for summary judgment. Smith, J.P., Schmidt, Adams and Cozier, JJ., concur.