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

1342
CA 15-00460
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


ALEX C. MILLER, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

KIRK HOWARD, ET AL., DEFENDANTS,
AMORE’S USED CARS & REPAIRS, INC.,
DEFENDANT-APPELLANT,
AND COUNTY OF CATTARAUGUS,
DEFENDANT-RESPONDENT.


FRANCIS M. LETRO, BUFFALO (RONALD J. WRIGHT OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (WILLIAM K. KENNEDY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

BARCLAY DAMON LLP, BUFFALO (VINCENT G. SACCOMANDO OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeals from an order and judgment (one paper) of the Supreme
Court, Cattaraugus County (Paula L. Feroleto, J.), entered May 20,
2014. The order and judgment granted the motion of defendant County
of Cattaraugus for summary judgment and dismissed the complaint and
all cross claims against it.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when he was a passenger in a motor vehicle
operated by Kirk Howard (defendant). Plaintiff alleged in the
complaint, inter alia, that defendant County of Cattaraugus (County)
was negligent in maintaining the county road where the accident
occurred and that defendant Amore’s Used Cars & Repairs, Inc.
(Amore’s) was negligent in repairing defendant’s vehicle. Amore’s
asserted a cross claim against all defendants for contribution and
indemnification. Supreme Court granted the County’s motion for
summary judgment dismissing the complaint and all cross claims against
it. Plaintiff and Amore’s appeal, and we affirm.

     At the outset, we reject Amore’s contention that the court was
required to deny the County’s motion based on its failure to submit
Amore’s answer with its initial moving papers. Amore’s answer was
submitted by the County in its reply papers, was before the court when
                                 -2-                          1342
                                                         CA 15-00460

it decided the motion, and is part of the record on appeal (see Dale v
Gentry, 66 AD3d 1469, 1469).

     Although we agree with plaintiff “that there may be a triable
issue of fact whether [the County] was negligent in allowing the
[markings] on the road to become faded . . . , we further conclude
that [the County] met its initial burden on the motion by establishing
as a matter of law that any such negligence was not a proximate cause
of the accident and plaintiff failed to raise a triable issue of fact
with respect thereto” (Endieveri v County of Oneida, 35 AD3d 1268,
1269). “The only reasonable inference to be drawn from the facts
established by [the County] is that the accident would have occurred
regardless of the condition of the [road markings]” (id.). In
opposition to the motion, plaintiff’s expert did not address the speed
at which defendant was driving when he entered the curve, defendant’s
admitted intoxicated and fatigued state, his failure to notice earlier
traffic signs informing motorists of the curve’s presence and, most
importantly, how the “faded lines caused or contributed to [the]
accident” (Taylor v County of Onondaga, 139 AD2d 906, 906, lv denied
72 NY2d 807; see Ether v State of New York, 235 AD2d 685, 686-687).
Indeed, defendant testified that, prior to the accident, he “was
looking forward at the road and . . . noticed the yellow lines and
the[n] [the] crash happened.” “Because there is no evidence in the
record that the faded . . . [road markings] were a causative factor, a
jury making that finding would impermissibly have to resort to
speculation or conjecture” (Endieveri, 35 AD3d at 1269).

      Contrary to plaintiff’s further contention, plaintiff is
precluded from asserting a theory of liability based on the County’s
negligent design and construction of the road because he failed to
include that theory of liability in his notice of claim, and we note
that “a late notice of claim asserting such [a] theor[y] would in any
event be time-barred” (Clare-Hollo v Finger Lakes Ambulance EMS, Inc.,
99 AD3d 1199, 1201; see Crew v Town of Beekman, 105 AD3d 799, 800-
801).




Entered:   December 31, 2015                    Frances E. Cafarell
                                                Clerk of the Court
