Stone v. County of Rensselaer

226 A.D.2d 972, 641 N.Y.S.2d 184, 1996 N.Y. App. Div. LEXIS 3959

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 18, 1996
• Status: Published

Opinion

Peters, J.

Appeal from that part of an order of the Supreme Court (Canfield, J.), entered April 28, 1995 in Rensselaer County, which denied defendant County of Rensselaer’s motion for summary judgment dismissing the complaint against it.

Plaintiff was injured during the early hours of December 18, 1993 when the vehicle in which he was a passenger drove off Longswood Road in the Town of Pittstown, Rensselaer County. Plaintiff commenced this action against the County of Rensselaer and the Town of Pittstown, alleging that the accident was caused by the defective design, construction and maintenance of Longswood Road. Following joinder of issue and discovery, the County moved for summary judgment claiming that it did not own, control or maintain the road and had not owned it since January 1, 1971 when it was transferred to the Town. Supreme Court granted the County’s motion except as to the issue of liability relating to defective design and construction. The County appeals.

Plaintiff’s submission in opposition to the motion consisted of an affidavit by its engineering expert who opined that the County’s design and construction defects relate to its "failure to post appropriate speed limits and signs warning of a sharp curve in the road and the lack of a shoulder”. Since the County submitted uncontroverted evidence that it transferred ownership of Longswood Road to the Town over 22 years ago and thereafter had no authority to set the speed limit, post signs, mark the pavement or install traffic control devices thereon (see, Federoff v Camperlengo, 215 AD2d 806; Connolly v Rogers, 195 AD2d 649), we find that in the absence of any evidence " 'raising a triable issue of fact concerning whether the design of the roadway where the * * * accident occurred was made without adequate study or lacked a reasonable basis’ ” (Cannistra v Town of Putnam Val., 177 AD2d 536, 538 [quoting DiCupe v City of New York, 167 AD2d 442, lv denied 77 NY2d 806], lv denied 79 NY2d 755; see, Weiss v Fote, 7 NY2d 579; see also, Fitzrandolph v Rodrigue, 205 AD2d 496, lv denied 84 NY2d 811), summary judgment should have been granted dismissing plaintiff’s complaint against the County in its entirety.

Mikoll, J. P., Mercure, Crew III and Yesawich Jr., JJ., concur. Ordered that the order is modified, on the law, with costs to defendant County of Rensselaer, by reversing so much thereof as denied defendant County of Rensselaer’s motion regarding claims in the complaint relating to defective design and construction of Longswood Road; motion granted to that extent, summary judgment awarded to defendant County of Rensselaer and said claims against it are dismissed; and, as so modified, affirmed.