Gaynor v. Town of Hoosick

87 A.D.2d 946, 451 N.Y.S.2d 231, 1982 N.Y. App. Div. LEXIS 16474

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 1982
• Status: Published

Opinion

Cross appeals from an order of the Supreme Court at Special Term (Pitt, J.), entered December 23, 1980 in Rensselaer County, which, inter alia, denied both plaintiff’s and defendants’ motions for summary judgment. Plaintiff seeks exemplary and punitive damages resulting from the alleged wrongful entry upon, and the cutting of trees on his land, which abuts a narrow dirt roadway in the defendant town. Special Term granted defendants’ motion for a preference and denied motions made by both plaintiff and defendants for summary judgment, holding that triable issues of fact were presented precluding such relief. The order should be affirmed. The record substantiates the existence of triable issues of fact such as whether the roadway was a public town roadway; whether the town exceeded its powers in making improvements to the roadway; whether plaintiff sustained any actionable damage as the result of the improvements; whether plaintiff properly complied with the notice requirements of sections 50-e and 50-i of the General Municipal Law; and whether defendants exceeded the statutorily prescribed width within the right of way of the town roadway. Summary judgment may be granted only when it clearly appears that no material and triable issue of fact is presented (Di Menna & Sons v City of New York, 301 NY 118). “‘[Tissue-finding, rather than issue-determination, is the key to the procedure’ ” (Sill-man v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Order affirmed, without costs. Mahoney, P. J., Sweeney, Casey, Yesawich, Jr., and Weiss, JJ., concur.