Ossmer v. Bates

97 A.D.2d 871, 469 N.Y.S.2d 273, 1983 N.Y. App. Div. LEXIS 20660

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 1983
• Status: Published

Opinions

Appeal from an order of the Supreme Court at Special Term (Cholakis, J.), entered December 15, 1982 in Columbia County, which denied a motion by third-party defendant Town of New Lebanon for summary judgment dismissing the third-party complaint of Roderick L. Bates and the cross claim of the County of Columbia. The primary action herein, commenced by plaintiff as administrator of the estate of John D. Ossmer, deceased, is an action for wrongful death and conscious pain and suffering arising out of an automobile accident that occurred on a public highway known as Route 9 in the Town of New Lebanon, County of Columbia. The Town of New Lebanon, brought into the action as a third-party defendant, moved at Special Term to dismiss the third-party complaint of third-party plaintiff Roderick L. Bates and the cross claim of third-party defendant County of Columbia. The third-party claims against the Town of New Lebanon are based upon the negligent design and maintenance of the highway and the failure to adequately warn of the dangerous condition of the roadway. The evidence presented upon the motion, including examinations before trial, reveals that Route 9 was a county highway which was owned, designed, maintained, repaired and controlled by Columbia County. Special Term denied the relief requested finding: “the existence of triable issues in view of the Town’s participation in efforts to cure an allegedly dangerous condition on the roadway in question.” This appeal by the Town of New Lebanon followed. There should be a reversal. The motion for summary judgment dismissing the third-party complaint and the cross claim of the third-party defendant Columbia County should be granted and the third-party complaint and cross claim against the Town of New Lebanon dismissed. Clearly, a municipality will not be held liable for negligent design or maintenance of a highway it does not own or control in any way (see 4B Warren, Negligence in New York Courts [3d ed], Highways, §§ 3.01-3.05, 4.01, 7.03, pp 242-248, 264-265; see, also, Pontonero v Da Prano, 24 AD2d 546). “It is well established that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff [citations omitted]. In the absence of duty, there is no breach and without a breach there is no liability (Kimbar u Estis, 1 NY2d 399, 405).” (Pulka vEdelman, 40 NY2d 781, 782.) In the instant case, there is no showing that the town had any control over the county highway in question. Thus the town had no duty to users of that county highway to maintain the highway nor to warn of dangers arising out of the failure to properly design, construct or maintain it. The town could not correct the defective highway and, therefore, it could not be held liable for failure to do so, nor correspondingly for failure to warn of its dangerous or defective condition. The County of Columbia relies on Bonesteel v Fitzgerald Bros. Constr. Co. (86 AD2d 715) as support for its argument that section 1682 of the Vehicle and Traffic Law imposes a duty on the Town of New Lebanon to warn of the dangerous condition even though the town did not own the highway in question. That reliance is misplaced since in Bonesteel (supra), the city owned, controlled and maintained the roadway in question leading into the dangerous highway condition. Here, the town lacked any such ownership or control over Route 9. Moreover, we are of the opinion that the Vehicle and Traffic Law does not impose a duty on the municipalities where none existed before. Finally, the fact that the town joined with the county in requesting that the State Department of Transportation reduce the speed limit on the county road pursuant to section 1622 of the Vehicle and Traffic Law did not make the town liable for the condition of the county road (see Cox v State of New York, 110 Mise 2d 924). Likewise, the fact that the Department of Transportation sent a reply to the town advising of the need for signing the roadway, without also sending a reply to the county, did not obligate the town to advise the county of the Department of Transportation’s message nor to take any action. Order reversed, on the law, motion of third-party defendant Town of New Lebanon for summary judgment granted, third-party complaint and cross claim against third-party defendant town dismissed, with costs to the town against Roderick L. Bates and the County of Columbia. Mikoll, Yesawich, Jr., Weiss and Levine, JJ., concur.