Carlo v. Town of East Fishkill

Appellate Division of the Supreme Court of New York

Carlo v. Town of East Fishkill

19 A.D.3d 442, 798 N.Y.S.2d 64

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 13, 2005

StatusPublished

Cited by4 cases

This text of 19 A.D.3d 442 (Carlo v. Town of East Fishkill) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carlo v. Town of East Fishkill, 19 A.D.3d 442, 798 N.Y.S.2d 64 (N.Y. Ct. App. 2005).

Pincite

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated March 15, 2004, which granted the defendant’s motion for summary judgment dismissing the complaint and, in effect, denied, as academic, their cross motion to compel discovery.

Ordered that the order is affirmed, with costs.

As a general rule, a municipality will not be held responsible for the negligent design of a highway it does not own or control (see Ernest v Red Cr. Cent. School Dist., 93 NY2d 664, 675 [1999]; Kovalsky v Village of Yaphank, 235 AD2d 459 [1997]; Ossmer v Bates, 97 AD2d 871, 872 [1983]). Moreover, a municipality cannot be held liable for the failure to maintain in a reasonably safe condition a road it does not own or control unless it affirmatively undertakes such a duty (see Ernest v Red [443]*443Cr. Cent. School Dist., supra). Here, the defendant, the Town of East Fishkill, sustained its initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidence that the accident occurred on a state highway which it did not own (see Alcalay v Town of North Hempstead, 262 AD2d 258 [1999]; Silver v Cooper, 199 AD2d 255 [1993]). The evidence that the plaintiffs submitted in opposition to the motion was insufficient to raise a triable issue of fact as to whether the Town assumed control of the subject highway, or affirmatively undertook a duty to maintain it (see Ernest v Red Cr. Cent. School Dist., supra; Kovalsky v Village of Yaphank, supra; Murray v Wolff, 242 AD2d 265 [1997]; Hough v Hicks, 160 AD2d 1114 [1990]). The plaintiffs’ submissions also failed to raise a triable issue of fact as to whether the Town assumed a special duty to post a crossing guard at the accident site (see Estate of Konstantatos v County of Suffolk, 208 AD2d 889 [1994]; cf. Florence v Goldberg, 44 NY2d 189 [1978]). Furthermore, the plaintiffs’ mere hope that evidence sufficient to defeat the motion may be uncovered during the discovery process did not provide a basis for denial of the motion (see Sammarco v City of New York, 16 AD3d 657 [2005]; Grodski v Greenpoint Bank, 16 AD3d 623 [2005]; Spatola v Gelco Corp., 5 AD3d 469 [2004]). Adams, J.P., Krausman, Rivera and Fisher, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated March 15, 2004, which granted the defendant’s motion for summary judgment dismissing the complaint and, in effect, denied, as academic, their cross motion to compel discovery.

Ordered that the order is affirmed, with costs.

As a general rule, a municipality will not be held responsible for the negligent design of a highway it does not own or control (see Ernest v Red Cr. Cent. School Dist., 93 NY2d 664, 675 [1999]; Kovalsky v Village of Yaphank, 235 AD2d 459 [1997]; Ossmer v Bates, 97 AD2d 871, 872 [1983]). Moreover, a municipality cannot be held liable for the failure to maintain in a reasonably safe condition a road it does not own or control unless it affirmatively undertakes such a duty (see Ernest v Red [443]*443Cr. Cent. School Dist., supra). Here, the defendant, the Town of East Fishkill, sustained its initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidence that the accident occurred on a state highway which it did not own (see Alcalay v Town of North Hempstead, 262 AD2d 258 [1999]; Silver v Cooper, 199 AD2d 255 [1993]). The evidence that the plaintiffs submitted in opposition to the motion was insufficient to raise a triable issue of fact as to whether the Town assumed control of the subject highway, or affirmatively undertook a duty to maintain it (see Ernest v Red Cr. Cent. School Dist., supra; Kovalsky v Village of Yaphank, supra; Murray v Wolff, 242 AD2d 265 [1997]; Hough v Hicks, 160 AD2d 1114 [1990]). The plaintiffs’ submissions also failed to raise a triable issue of fact as to whether the Town assumed a special duty to post a crossing guard at the accident site (see Estate of Konstantatos v County of Suffolk, 208 AD2d 889 [1994]; cf. Florence v Goldberg, 44 NY2d 189 [1978]). Furthermore, the plaintiffs’ mere hope that evidence sufficient to defeat the motion may be uncovered during the discovery process did not provide a basis for denial of the motion (see Sammarco v City of New York, 16 AD3d 657 [2005]; Grodski v Greenpoint Bank, 16 AD3d 623 [2005]; Spatola v Gelco Corp., 5 AD3d 469 [2004]). Adams, J.P., Krausman, Rivera and Fisher, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

19 A.D.3d 442, 798 N.Y.S.2d 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carlo-v-town-of-east-fishkill-nyappdiv-2005.

Opinion

Related

Cite This Page — Counsel Stack