Stach v. Town of New Windsor

12 A.D.3d 360, 783 N.Y.S.2d 311, 2004 N.Y. App. Div. LEXIS 12911

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Orange County (Peter C. Patsalos, J), dated April 14, 2003, which granted the defendant’s motion for summary judgment dismissing the complaint and denied their cross motion for summary judgment on the issue of liability, and (2), as limited by their brief, from so much of an order of the same court dated July 17, 2003, as, in effect, upon reargument, adhered to its original determination.

Ordered that the appeal from the order dated April 14, 2003, is dismissed, as that order was superseded by the order dated July 17, 2003, made upon reargument; and it is further,

Ordered that the order dated July 17, 2003, is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the defendant.

In opposition to the defendant’s prima facie showing of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact that the defendant was negligent, inter alia, in the design, construction, or maintenance of the subject road or that any such negligence was a proximate cause of the injuries resulting from the accident (see Atkinson v County of Oneida, 59 NY2d 840 [1983]; Perry v Kazolias, 302 AD2d 575 [2003]; Gilberto v Town of Plattekill, 279 AD2d 863 [2001]; Boucher v Town of Candor, 234 AD2d 669 [1996]). Accordingly, upon reargument, the Supreme Court properly adhered to its original determination granting the defendant’s motion for summary judgment dismissing the complaint. Ritter, J.P., Smith, Goldstein and Lifson, JJ., concur.