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Charles CUMPSTON accident in the County of Rockland 2000

275 A.D.2d 340 (2000) 712 N.Y.S.2d 425 CHARLES CUMPSTON, Respondent,
v. WIESLAWA MARCINKOWSKA et al., Respondents,
COUNTY OF ROCKLAND, Appellant, et al., Defendants.
Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided August 14, 2000. Santucci, J.P., McGinity, Luciano and Schmidt, JJ., concur.

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 NY2d 978; Johnson v Verrilli, 139 AD2d 497). Contrary to the County's contention, under the circumstances of this case and at this stage of the proceedings, it cannot 341*341 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 NY2d 985; Owens v City of Syracuse, 258 AD2d 898; cf., Atkinson v County of Oneida, 59 NY2d 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 AD2d 439).
 
 

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