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DESPITE EVIDENCE THAT BOTH DRIVERS WERE FAMILIAR WITH THE INTERSECTION WHERE THE TRAFFIC ACCIDENT OCCURRED, PLAINTIFFS’ EXPERT RAISED A QUESTION OF FACT WHETHER PROPER SIGNAGE COULD HAVE PREVENTED THE ACCIDENT; THE TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiffs’ expert raised a question of fact whether proper signage at the intersection where the traffic accident occurred could have prevented the collision. The fact that both drivers were familiar with the intersection did not require that the town’s motion for summary judgment be granted (as Supreme Court had found):

“As a general rule, the question of proximate cause is to be decided by the finder of fact,” but it may be decided as a matter of law “where only one conclusion may be drawn from the established facts” … . Here, in support of its motion for summary judgment, the Town submitted evidence revealing that the drivers had some familiarity with the intersection, together with expert proof that the existing markings and traffic control devices were appropriate and consistent with applicable design standards. However, plaintiffs countered the Town’s showing with evidence that additional devices, such as a stop sign and painted stop bar, as well as pavement markings indicating the proper turning radius, were required for the subject intersection by applicable design standards; plaintiffs’ expert opined that the absence of such markings and devices was a substantial contributing factor to this collision. Notably, “a disagreement . . . between experts merely creates a question of credibility to be resolved by the finder of fact” … . Upon review, we do not find the opinions expressed by plaintiffs’ expert in this matter to be lacking in either substance or foundation … . O’Keefe v Wohl, 2020 NY Slip Op 03579, Third Dept 6-25-20

 

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