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

83
CA 14-00707
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


RICHARD H. WARNER, INDIVIDUALLY AND AS GUARDIAN
OF MARY DOROTHY WARNER, AN INCAPACITATED PERSON,
CLAIMANT-APPELLANT,

                    V                                MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 98768.)
--------------------------------------------------
RICHARD H. WARNER, AS EXECUTOR OF THE ESTATE OF
MARY DOROTHY WARNER, DECEASED, CLAIMANT-APPELLANT,

                    V

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 105712.)
(APPEAL NO. 1.)


THE COSGROVE LAW FIRM, BUFFALO (EDWARD C. COSGROVE OF COUNSEL), FOR
CLAIMANT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JEFFREY W. LANG OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Court of Claims (Michael E. Hudson,
J.), entered July 25, 2013. The order granted the motion of defendant
for summary judgment and dismissed the claims.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied,
and the claims are reinstated.

     Memorandum: In appeal No. 1, claimant appeals from an order
granting defendant’s motion for summary judgment and dismissing two
separate claims, one seeking damages for personal injuries sustained
by claimant’s decedent (decedent), and a second seeking damages for
the wrongful death of decedent. In appeal No. 2, claimant appeals
from an order that denied his motion for leave to reargue or leave to
renew defendant’s motion (see generally CPLR 2221). Addressing the
order in appeal No. 1, we agree with claimant that the Court of Claims
erred in granting defendant’s motion. Defendant “has a duty to
maintain its roadways ‘in a reasonably safe condition for foreseeable
uses’ ” (Grevelding v State of New York, 91 AD3d 1309, 1310, quoting
Stiuso v City of New York, 87 NY2d 889, 891). “[W]hen a condition
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                                                         CA 14-00707

renders it unsafe for persons using it in the exercise of reasonable
care and such condition has existed long enough to give the State
constructive notice[,] it is incumbent upon the State to take whatever
action is reasonably required for the protection of travelers on the
highway” (Kenyon v State of New York, 21 AD2d 851, 852; see Preston v
State of New York, 6 AD3d 835, 836, lv denied 3 NY3d 601). Here,
defendant sought dismissal of the claims on the ground that there was
no significant history of accidents at the intersection where the
accident occurred in which decedent was injured and, therefore, that
it had not been placed on notice of a dangerous condition (see
generally Friedman v State of New York, 67 NY2d 271, 286). The
affidavits of defendant’s experts, however, were not supported by the
data upon which the experts based their opinions, and thus the
affidavits lacked probative value in establishing defendant’s
entitlement to judgment as a matter of law (see Costanzo v County of
Chautauqua, 110 AD3d 1473, 1473; see generally Diaz v New York
Downtown Hosp., 99 NY2d 542, 544). Indeed, we conclude that
defendant’s own submissions raised questions of fact whether defendant
was on notice of a dangerous condition (see generally Zuckerman v City
of New York, 49 NY2d 557, 562).

     We dismiss the appeal from the order in appeal No. 2. Insofar as
the order in appeal No. 2 denied that part of claimant’s motion for
leave to reargue, no appeal lies from the order (see Empire Ins. Co. v
Food City, 167 AD2d 983, 984) and, insofar as the order in appeal No.
2 denied that part of the motion for leave to renew, the appeal is
moot in view of our determination in appeal No. 1 (see McCabe v CSX
Transp., Inc., 27 AD3d 1150, 1151).




Entered:   February 6, 2015                    Frances E. Cafarell
                                               Clerk of the Court
