Opinion
Argued May 31, 2000
August 15, 2000.
In an action to recover damages for personal injuries, the defendant County of Rockland appeals from so much of an order of the Supreme Court, Rockland County (Sherwood, J.), dated June 30, 1999, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it with leave to renew.
Saretsky Katz Dranoff Glass, LLP, New York, N.Y. (David B. Halperin of counsel), for appellant.
John A. Gallucci, Jr., Piermont, N.Y. (Donald J. Feerick, Jr., of counsel), for plaintiff-respondent.
Before: FRED T. SANTUCCI, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff was injured when he was struck by a car as he was walking across a roadway in the County of Rockland. The Supreme Court properly denied the County's motion for summary judgment with leave to renew upon completion of the deposition of the defendant driver (see generally, Groves v. Land's End Hous. Co., 80 N.Y.2d 978; Johnson v. Verrilli, 139 A.D.2d 497). Contrary to the County's contention, under the circumstances of this case and at this stage of the proceedings, it cannot be concluded as a matter of law that the plaintiff's familiarity with the accident site precludes a finding of liability against it (see, Scheemaker v. State of New York, 70 N.Y.2d 985; Owens v. City of Syracuse, 258 A.D.2d 898; cf., Atkinson v. County of Oneida, 59 N.Y.2d 840).
We have not considered the County `s argument concerning the adequacy of the plaintiff's notice of claim. This argument was improperly raised for the first time in the County's papers in reply to the plaintiff's opposition to its motion for summary judgment (see, Fischer v. Weiland, 241 A.D.2d 439).