        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1303
CA 14-00991
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


REGINA HONER, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

KELLY MCCOMB, DEFENDANT-RESPONDENT,
COUNTY OF MONROE, DEFENDANT-APPELLANT,
ET AL., DEFENDANTS.


MERIDETH H. SMITH, COUNTY ATTORNEY, ROCHESTER (HOWARD A. STARK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MARTIN J. ZUFFRANIERI, WILLIAMSVILLE, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (J.
Scott Odorisi, J.), entered February 20, 2014. The order, inter alia,
denied in part the motion of defendant County of Monroe for summary
judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this personal injury action, defendant County of
Monroe (County) appeals from an order which, inter alia, denied that
part of its motion for summary judgment dismissing the complaint as
against it. We affirm. On May 3, 2006, a vehicle owned by defendant
Kelly McComb and driven by defendant John Doe struck a parking sign
located on a sidewalk adjacent to a city street. The post and
attached sign detached from the base in which the post had been
secured and launched into the air, striking plaintiff, a pedestrian
standing on the sidewalk. The sign and post struck plaintiff in the
back, causing her to sustain a catastrophic spinal injury.

     Pursuant to an agreement with defendant City of Rochester (City),
the County was responsible for the City’s traffic engineering
services, including maintenance of the parking sign that struck
plaintiff. In October 1999, the County had reinstalled the parking
sign, after it was reported to be “bent over,” by attaching the sign
to a 10-foot channel post with bolts and attaching that to a 4-foot
channel base post, leaving approximately one foot of the base post
visible above the ground. Once reinstalled, the parking sign remained
in place until the date of the subject accident.

     Plaintiff commenced this action against, inter alia, the County,
alleging a single cause of action for negligence against the County.
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                                                         CA 14-00991

Plaintiff alleged in her complaint, as amplified by her bill of
particulars, that the County, pursuant to its agreement with the City,
had a duty to exercise due care in, inter alia, using proper materials
for the sign and its installation, and in placing the sign post at a
proper depth in the ground and at a proper distance from the roadway,
and that the County breached that duty, thereby proximately causing
plaintiff’s injuries.

     Initially, we agree with the County that, in discussing the
standard for negligence, Supreme Court erroneously cited Kimbar v
Estis (1 NY2d 399), which makes reference to the now-abrogated
doctrine of contributory negligence (see CPLR 1411). We conclude,
however, that inasmuch as that doctrine and the modern doctrine of
comparative fault are inapplicable to this case, and because the court
otherwise applied the proper standard for negligence, the error is of
no legal consequence.

      We reject the County’s contention that it does not owe a duty of
care to plaintiff. “The existence and scope of a duty of care is a
question of law for the courts entailing the consideration of relevant
policy factors” (Church v Callanan Indus., 99 NY2d 104, 110-111).
“[A] contractual obligation, standing alone, will generally not give
rise to tort liability in favor of a third party,” i.e., a person who
is not a party to the contract (Espinal v Melville Snow Contrs., 98
NY2d 136, 138). An exception applies where the contracting party has
“ ‘entirely displaced the other party’s duty to maintain the premises
safely’ ” (id. at 140). Here, we conclude that the County’s duty to
plaintiff arose from its comprehensive agreement with the City
inasmuch as, pursuant to that agreement, the County has entirely
displaced the City in fulfilling the City’s duty to be responsible for
traffic signs (see Church, 99 NY2d at 112; Palka v Servicemaster Mgt.
Servs. Corp., 83 NY2d 579, 588). Specifically, the County had a duty
to properly reinstall the sign in October 1999, including using proper
materials, installing the sign’s post at the appropriate depth in the
ground on a proper base, and placing the sign at the required distance
from the roadway. Moreover, that duty “extend[ed] to noncontracting
individuals[, such as nearby pedestrians,] reasonably within the zone
and contemplation of the intended [traffic engineering] services”
encompassed by the County’s agreement with the City (Palka, 83 NY2d at
589).

     We also reject the County’s contention that even assuming,
arguendo, it was negligent, its negligence was not a proximate cause
of plaintiff’s injuries. “[I]t is well settled that there may be more
than one proximate cause of [an] accident” (Przesiek v State of New
York, 118 AD3d 1326, 1327). Although we agree with the County that it
met its initial burden for summary judgment on the issue of proximate
cause by submitting an expert’s affidavit, we nevertheless conclude
that plaintiff’s own expert raised an issue of fact (see Newton v
Gross, 213 AD2d 1074, 1074-1075). Plaintiff’s expert opined in his
opposing affidavit that the County improperly installed a breakaway
signpost and that the accident would not have occurred but for that
improper installation. Plaintiff’s expert also opined that the
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                                                         CA 14-00991

County’s negligence in installing the sign was a substantial factor in
causing plaintiff’s injuries. Specifically, he opined that, had the
sign been properly placed, it would not have struck plaintiff because
its placement one foot above the ground created a risk that the sign
would become a high-flying projectile if hit, rather than bending or
projecting closer to the ground. We conclude that the court properly
denied the County’s motion because the submission of conflicting
expert opinions “present[ed] issues of credibility to be determined by
the trier of fact” (Newton, 213 AD2d at 1074-1075; see generally
Alvarez v Prospect Hosp., 68 NY2d 320, 324).

     Finally, we reject the County’s contention that the court did not
address its entitlement to summary judgment against McComb on the
issue of liability. The court specifically held that “[t]he County .
. . [is] entitled to summary judgment in regard to McComb.” McComb
had stipulated to her ownership of the vehicle involved and agreed
that she is liable to plaintiff as a result of Doe’s negligence in
operating the vehicle, i.e., for Doe’s apportionment of fault. That
stipulation did not purport to render McComb completely liable so as
to entitle the County to summary judgment dismissing the complaint as
against it (see Sydnor v Home Depot U.S.A., Inc., 74 AD3d 1185, 1187).




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
