Plaintiff commenced this action seeking to recover damages for injuries sustained by her in a "trip and fall" accident in front of her parents' home in Harrison, New York (the Home). She now moves for partial summary judgment, i.e.,summary judgment on the issue of liability only.

On May 20, 2003, a crew of workers employed by the defendant made repairs to the driveway apron outside of the Home, located at 91 Park Avenue, in the Town of Harrison. In this lawsuit, it is alleged that as a result of the manner in which the work was [*2]performed, "a snaking groove or gouge [was cut] in the roadway surface", which was "approximately 3-4 inches wide, 12 feet long and an inch or more deep" (Mardon Affirm., Exh.E, par.3). It is further claimed that on October 21, 2004, while plaintiff was walking in front of the Home, she tripped and fell over the groove in the roadway (the Groove) and sustained serious injuries.

Earlier in the action, when pretrial discovery had been declared to be completed, defendant moved for summary judgment dismissing the complaint. Plaintiff responded with a cross-motion requesting summary judgment on the issue of liability only.

By decision and order entered on January 30, 2007 (the January Decision), this Court granted partial summary judgment on the defendant's motion solely to the extent that the issue of lack of prior notice was resolved in defendant's favor. Although the Court denied plaintiff's cross-motion, it observed that if plaintiff had disclosed her fact witnesses to defendant, she would have been entitled to partial summary judgment because defendant failed to deny that it had created the defective condition, i.e., the Groove. However, because plaintiff did not provide defendant with the names of her fact witnesses, that relief was not then available.

Additionally, the January Decision noted that defendant obtained enough information at plaintiff's deposition to seek depositions of certain of her family members who were the fact witnesses, but did not pursue that discovery. Faced with the lack of diligence on both sides of the action, the Court determined that the appropriate course was to "place them in the position that both would have been in had they both acted appropriately with respect to their discovery obligations and opportunities" (Mardon Affirm., Exh.D, Decision and Order, p.4). Consequently, the Court struck plaintiff's note of issue and directed the parties to conduct any further pretrial discovery by no later than February 28, 2007. Despite that opportunity, neither party pursued any additional depositions.

At the trial readiness conference conducted on March 1, 2007, the action was again marked trial-ready. With the parties awaiting their trial, plaintiff again moves for summary judgment on the issue of liability.

II. DISCUSSION

In her complaint, plaintiff asserts a single cause of action sounding in negligence. Defendant's effort to defeat plaintiff's [*3]claim is based upon the special notice requirement applicable to a lawsuit against a municipality.

A. DEFENDANT'S NEGLIGENCE

Defendant has enacted an ordinance making prior written notice of a defective road condition a condition precedent to any lawsuit against it for negligence in its road maintenance. "Where, as here, a municipality has enacted a prior written notice statute, it cannot be liable for injuries caused by an improperly maintained roadway unless either it has received prior written notice of the defect or an exception to the prior written notice requirement applies" (Wilkie v. Town of Huntington, 29 AD3d 898,898 [2d Dept. 2006], citing Amabile v. City of Buffalo, 93 NY2d 471,474 [1999]).

There are two recognized exceptions to the prior written notice requirement, namely, where the locality created the defect or hazard through an affirmative act of negligence (Kiernan v. Thompson, 73 NY2d 840,841-842[1988]) and where a "special use" confers a special benefit upon the locality (Poirier v. City of Schenectady, 85 NY2d 310,314-315 [1995]). Plaintiff's motion is founded upon the exception where the municipality has created the defective condition.^[FN1]

As relates to that exception, in support of her motion plaintiff has submitted affidavits from her mother, sister and brother-in-law (collectively hereinafter "the Three Affidavits"), each of whom claims that, on the date the repair work was performed, certain of defendant's employees acknowledged their responsibility for creating the Groove. Her brother-in-law goes further, however, in that he asserts that he "directly observed ... that the dragging of [an excavation bucket attached to the arm of a construction vehicle] carved [the] [G]roove" (Mardon Affirm., Exh.F, Richard Passarelli Affid., par.3). Taken together, plaintiff's proof is sufficient to entitle her to summary judgment, thereby shifting the burden to defendant to demonstrate the existence of a factual issue requiring a trial (Zuckerman v. City of New York, 49 NY2d 557,562 [1980]; International Shared Services, Inc. v. McCoy, 259 AD2d 668,669 [2d Dept. 1999] ["The moving party bears the initial burden of proving its entitlement, as a matter of law, to summary judgment by tendering evidentiary [*4]proof in admissible form"]).

Seeking to meet that burden, defendant offers three arguments. Closely examined, the first two are unpersuasive. The third, however, is sufficient to require a trial of the action, but with the issues significantly limited.

First, defendant asserts that the Three Affidavits should not be considered because they are all based solely upon hearsay. Specifically, it is defendant's view that "[a] close read of the nearly identical witness' affidavits ... shows that not one of the three (3) individuals actually saw the bucket' create the alleged defective condition" (Rotini Affirm., p.2).

It is certainly true that an affidavit based upon hearsay will not support a grant of summary judgment (Walter v. Niagara Mohawk Power Corp., 193 AD2d 1065,1065 [4th Dept. 1993] [Affidavit based upon hearsay and documents not included in the record was "without

evidentiary value and [wa]s inadequate to support defendant's motion for summary judgment"]). Here, however, none of the Three Affidavits is founded only upon hearsay. Rather, both plaintiff's mother and her sister stated that they observed the condition after realizing that something had occurred, and her brother-in-law saw the dragging of the bucket cause the Groove. Thus, the first two witnesses have offered circumstantial evidence, and the third has offered direct evidence, that defendant created the defective condition. While each of the three has also repeated statements allegedly made to them by defendant's workers, none of their affidavits is based only upon statements made to them by others, or upon any other form of hearsay. For that reason, defendant's first argument is unavailing.

Second, defendant maintains that plaintiff has failed to meet her burden of going forward on the summary judgment motion. Contrary to that argument, as the Court has already determined, plaintiff has, in fact, come forth with sufficient proof to establish her entitlement to summary judgment. Thus, it is defendant's evidence in opposition that must now be examined. And close scrutiny of it warrants the conclusion that it is insufficient to defeat the motion to the extent that it seeks a determination of the negligence issue against defendant.

In opposition to the motion, defendant has submitted affidavits from four of its workers who were present when the work was done at the Home (collectively hereinafter "the Workers' Affidavits"). Therein, each of the four workers denies having any conversations with any of plaintiff's three witnesses concerning the creation of the Groove. If the only proof offered by plaintiff [*5]was that these admissions had been made, the Court would be required to deny summary judgment, because a credibility issue is created by the Workers' Affidavits which cannot be resolved on a motion for summary judgment (Bronson v. March, 127 AD2d 810 [2d Dept. 1987] [Summary judgment properly denied "since the affidavits raise[d] issues of credibility which cannot be resolved on a summary judgment motion"]).

As noted, however, the Three Affidavits constitute both direct and circumstantial proof that the Groove was caused when defendant's vehicle dragged a bucket across the roadway in front of the Home. Consequently, what is required to defeat a finding, as a matter of law, that defendant was negligent, is some competent proof that no such event occurred. And it is with regard to this aspect of the case that the Workers' Affidavits are noteworthy not for what they contain, but for what they do not contain. Nowhere in any of those four affidavits does any worker deny that the Groove was created in the course of the repair work performed in front of the Home. Indeed, as is apparent, their affidavits are carefully crafted to entirely avoid any discussion of the manner in which that work was done. This is particularly telling since each of the four workers admits being present on the day that the work was performed.

Although not cited by their counsel in her affirmation, two of defendant's employees, Brian Perone and Robert G. Wasp, have offered their opinions that the bucket could not have caused damage similar to the Groove.^[FN2] Neither, however, sufficiently explains the [*6]basis for his conclusion or provides an adequate foundation for it (cf. Delgado v. County of Suffolk, 40 AD3d 575 [2d Dept. 2007] ["[P]laintiff's submissions in opposition [to summary judgment motion] were insufficient to raise a triable issue of fact because", inter alia, the expert's affidavit failed to explain how he had reached the conclusions that he did"]). For that reason, even if they had been relied upon by defendant in opposing the motion, these opinions would not suffice to raise a factual issue requiring a trial of the negligence issue (Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223,231 [1978] ["[O]nly the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment"]).

Thus viewed, defendant has failed to meet its burden in opposition to the motion. Therefore, absent other considerations, plaintiff would be granted summary judgment on the issue of liability.

"Negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination" (Ugarriza v. Schmieder, 46 N.Y2.d 471,474 [1979]; McCummings v. New York City Transit Auth., 81 NY2d 923,926 [1993]). Consequently, "when [a] suit is founded on a claim of negligence, the plaintiff will generally be entitled to summary judgment only in cases in which there is no conflict at all in the evidence, the defendant's conduct fell far below any permissible standard of due care, and the plaintiff's conduct either was not really involved (such as with a passenger) or was clearly of exemplary prudence in the circumstances" (Andre v. Pomeroy, 35 NY2d 361,364-365 [1974] [internal citation and quotation marks omitted]).

Here, defendant's third argument in opposition to the motion is based upon the latter consideration, i.e., whether plaintiff's conduct "was clearly of exemplary prudence in the circumstances" [*7](ibid.). In particular, defendant contends that there are issues remaining concerning the comparative negligence of the plaintiff, including the open and obvious nature of the defect and whether reasonable care was taken by the plaintiff. In this regard, defendant relies upon the admissions made by plaintiff at her deposition that she had seen the Groove for more than one year prior to her fall in October 2004, and that, in fact, she had repeatedly stepped over the Groove in her travels to and from the Home during that lengthy time period.

It is settled law in this Judicial Department that "proof that

a dangerous condition is open and obvious does not preclude a finding of liability against a landowner for the failure to maintain the property in a safe condition but is relevant to the issue of the plaintiff's comparative negligence" (Cupo v. Karfunkel, 1 AD3d 48,52 [2d Dept. 2003]). In view of the evidence that the Groove was readily observable to plaintiff and that she had been aware of its existence for more than one year before her accident, the Court agrees with defendant that an issue of fact as to comparative negligence exists in this case (see Cucuzza v. City of New York, 2 AD3d 389,390 [2d Dept. 2003] ["[E]ven assuming that the hole in question was open and obvious, that only raises a question as to the injured plaintiff's comparative negligence and does not, as a matter of law, negate liability on the part of those who created the defect and/or are responsible for the project"]). For that reason only, the Court may not determine the liability issue as a matter of law, and plaintiff's motion for summary judgment must be denied.

Pursuant to CPLR 3212(g), when summary judgment is denied, "a court ... [may] ascertain what facts ... are incontrovertible, and [may] make an order specifying the facts deemed established for all purposes in the action." CPLR 3212(g) further permits "the court [to] make any order as may aid in the disposition of the action" (see Siewert v. Loudonville Elementary School, 210 AD2d 568,569 [3 Dept. 1994] [emphasis added]). As has been recognized, "[s]o utilized, the partial summary judgment procedure [of CPLR 3212[g]) affords the opportunity of promptly settling issues which can be disposed of as a matter of law, and furthermore, furnishes a means for the withdrawing from the case of sham and feigned issues of fact and of law which might have a tendency to confuse and complicate the trial", which allows "some constructive results [to] be salvaged from the judicial efforts expended on a motion for summary judgment" (Janos v. Peck, 21 AD2d 529,531 [1st Dept. 1964], affd. 15 NY2d 509 [1964]). [*8]

Here, notwithstanding that summary judgment disposing of the entire liability issue is unavailable, a trial of the issue of defendant's negligence is not required. Rather, because defendant failed to meet its burden of demonstrating the existence of a factual issue as to its negligence, that issue need not be placed before the fact-finder when this case proceeds to trial (see Siewert v. Loudonville Elementary School, supra). Thus, at the trial of this action the liability issue to be determined will only be whether there was any comparative negligence on plaintiff's part, and if so, whether that negligence was a substantial factor in causing the accident.

WHEREFORE, it is

ORDERED that plaintiff's motion for summary judgment on the issue of liability is denied; and it is further

ORDERED that defendant's motion is granted solely to the extent that the issue of defendant's negligence is resolved in plaintiff's favor and shall not be litigated at the trial of the action.

The foregoing shall constitute the decision and order of the Court.

Dated: White Plains, New York

September 4, 2007

HON. WILLIAM J. GIACOMO, J.S.C.

cc:Brian C. Mardon, Esq.Melissa-Jean Rotini, Esq.

Spiegel & Barbato, LLPJoseph A. Maria, P.C.

2622 East Tremont Avenue301 Old Tarrytown Road

Bronx, New York 10461White Plains, New York 10603