Moshier v. Phoenix Central School District

Callahan and Doerr, JJ. (dissenting in part).

We disagree with the majority’s conclusion that summary judgment should be granted to defendant Phoenix Central School District (the District). The evidence presented to Supreme Court was sufficient to raise a factual issue whether the placement of the bus stop by the District was negligent. The evidence demonstrates that the District had notice of a dangerous condition created by the placement of a bus stop at the base of a hill where oncoming traffic, upon reaching the crest of the hill, had insufficient warning of a slowing or stopped school bus to respond, particularly when weather conditions created slippery roads and limited visibility. Because the District had notice that a dangerous condition existed, whether it acted reasonably by failing to take any action presents a question for the jury. Because summary judgment is such a drastic remedy, it should not be granted if there is any doubt about the existence of a triable issue of fact (CPLR 3212; Rotuba Extruders v Ceppos, 46 NY2d 223, 231; Andre v Pomeroy, 35 NY2d 361, 364). Because we believe that triable issues of fact exist concerning the reasonableness of the conduct of the District, we would affirm Supreme Court’s denial of summary judgment to the District. (Appeal from Order of Supreme Court, Oswego County, Nicholson, J.—Summary Judgment.) Present—Denman, P. J., Callahan, Pine, Doerr and Boehm, JJ.