Donaldson v. Town of Aurora

155 A.D.2d 943, 547 N.Y.S.2d 763, 1989 N.Y. App. Div. LEXIS 14805

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1989
• Status: Published

Opinion

— Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying defendant Town of Aurora’s motion for summary judgment dismissing plaintiffs’ complaint together with codefendant’s cross claims. Plaintiff Sharon Donaldson suffered severe personal injuries when her car left West Falls Road near the intersection of State Route 240, traveled through two unconnected guideposts and rolled down an embankment into Cazenovia Creek. Defendant town, in support of its summary judgment motion, established that it did not own or have any duty to maintain either the roadway or the guideposts. Affidavits from town employees were also submitted which indicated that the town did not remove the fencing between these guideposts. Defendant town has submitted sufficient evidentiary proof to establish its defense as a matter of law, and it is incumbent upon plaintiffs to set forth evidentiary facts in admissible form sufficient to require a trial (see, Zuckerman v City of New York, 49 NY2d 557; Cusano v General Elec. Co., 111 AD2d 557, affd 66 NY2d 844). Plaintiffs’ assertion that it can be reasonably inferred that the town removed this fencing because the town owned and operated a park next to the county right-of-way where these guideposts were located is merely surmise and is insufficient to defeat summary judgment (see, Zuckerman v City of New York, supra; Goldstein v Edwards, 81 AD2d 752; Lerner Stores Corp. v Parklane Hosiery Co., 54 AD2d 1072). (Appeal from order of Supreme Court, Erie County, Forma, J. — summary judgment.) Present — Dillon, P. J., Callahan, Boomer, Balio and Lawton, JJ.