Mente v. County of Tioga

18 A.D.2d 863, 236 N.Y.S.2d 418, 1963 N.Y. App. Div. LEXIS 4790

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 1963
• Status: Published

Opinion

Defendant appeals from an order of the Supreme Court, Special Term, Broome County, denying its motion to dismiss the complaints for legal insufficiency (Rules Civ. Prae., rule 106) and for summary judgments (rule 113) in two actions treated by the parties and the court as one for the purposes of the motion. Broadly and liberally construed the pleadings attacked may be read to allege a breach of a duty on the part of the local authority to warn and guide westbound travelers on the county highway of alleged impending danger (Vehicle and Traffic Law, § 1682) quite apart from any such imposed upon the State of New York at an intersection of a county road and a State highway. (Vehicle and Traffic Law, § 1681, subd. [a]; Highway Law, § 43.) Such averments we believe are sufficient to sustain the complaints. The moving affidavit of counsel merely reiterates the legal argument that such duty rested exclusively upon the State. The result reached by Special Term was correct. Order affirmed, with $10 costs. Bergan, P. J., Coon, Gibson and Taylor, JJ., concur; Herlihy, J., dissents: I would reverse and dismiss the complaint as a matter of law pursuant to rule 106 of the Rules of Civil Practice. The pertinent sections of the Highway and Vehicle and Traffic Laws are a complete defense to the cause of action alleged in the complaint.