Oram v. Capone

• Court: New York Supreme Court — Appellate Division
• Citation: Oram v. Capone, 615 N.Y.S.2d 799, 206 A.D.2d 839 (N.Y. App. Div. 1994)
• Decision Date: 15 July 1994
• Parties: Donna J. ORAM, Respondent, v. Robert L. CAPONE, Individually and as Administrator of the Estate of James V. Capone, Deceased, Defendant, Robin J. Halbert, Arlene A. Halbert, and the County of Onondaga, Appellants.

Page 799

615 N.Y.S.2d 799

206 A.D.2d 839

Donna J. ORAM, Respondent, v. Robert L. CAPONE, Individually and as Administrator of the Estate of James V. Capone, Deceased, Defendant Robin J. Halbert, Arlene A. Halbert, and the County of Onondaga, Appellants.

Supreme Court, Appellate Division Fourth Department.

July 15, 1994.

Jon A. Gerber (Marisa V. Temple, of counsel), Syracuse, for appellant County of Onondaga.

MacKenzie, Smith, Lewis, Michell & Hughes, Barney Bilello, Syracuse, for appellants Halbert and Halbert.

Aaron Mark Zimmerman, Syracuse, for respondent.

Before DENMAN, P.J., and PINE, FALLON, CALLAHAN and DAVIS, JJ.

MEMORANDUM:

Defendant County of Onondaga (County) failed to preserve for review its argument that, pursuant to Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63, rearg. denied 8 N.Y.2d 934, 204 N.Y.S.2d 1025, 168 N.E.2d 857, the doctrine of qualified municipal immunity applies to bar recovery against it. The County argues for the first time on appeal that plaintiff failed to establish that its decision not to post reduced speed signs on the subject portion of Lafayette Road was the result of an inadequate study or that its decision lacked a reasonable basis.

A question of law appearing on the face of the record may be raised for the first time on appeal if it could not have been avoided by the opposing party if brought to that party's attention in a timely manner (Block v. Magee, 146 A.D.2d 730, 732, 537 N.Y.S.2d 215). An issue may not be raised for the first time on appeal, however, where it "could have been obviated or cured by factual showings or legal countersteps" in the trial court (Telaro v. Telaro, 25 N.Y.2d 433, 439, 306 N.Y.S.2d 920, 255 N.E.2d 158, rearg. denied 26 N.Y.2d 751, 309 N.Y.S.2d 1031, 257 N.E.2d 296). We conclude that additional evidence could have been presented by plaintiff or codefendants Halberts to present a jury issue whether the County failed to conduct an adequate study or...