| Curtis v Town of Galway |
| 2008 NY Slip Op 03373 [50 AD3d 1370] |
| April 17, 2008 |
| Appellate Division, Third Department |
| Jay S. Curtis et al., Appellants, v Town of Galway et al.,Respondents. |
—[*1] Horigan, Horigan, Lombardo & Kelly, P.C., Amsterdam (Timothy Horigan of counsel), forrespondents.
Rose, J. Appeal from those parts of an order of the Supreme Court (Nolan, Jr., J.), enteredMay 29, 2007 in Saratoga County, which partially granted defendants' motion for summaryjudgment dismissing the complaint and granted defendants' motion to modify a prior order of thecourt.
After acquiring title to land traversed by West Galway Road, a dirt road located in defendantTown of Galway in Saratoga County, plaintiffs commenced this action pursuant to RPAPLarticle 15 seeking, among other things, a judgment declaring a section of the road to beabandoned under Highway Law § 205 based upon its alleged nonuse and lack ofmaintenance. Following discovery, defendants moved for summary judgment dismissing thecomplaint citing plaintiffs' admissions of public use, the deposition of the Town's HighwaySuperintendent, photographs depicting an unobstructed roadway and the Town's highwayrecords. Plaintiffs opposed the motion by asserting that they had observed only minimal use andpoor maintenance of the road. Supreme Court partially granted the motion by dismissingplaintiffs' causes of action based upon abandonment.
Plaintiffs contend on appeal that the grant of summary judgment was premature because theydid not have the opportunity to depose additional witnesses regarding the nonuse of the road.They have not, however, explained what additional information could be obtained from otherwitnesses or why their affidavits could not be presented (see Zinter Handling, Inc. v Britton, 46 AD3d 998, 1001 [2007];Allen v Vuley, 223 AD2d 868, 869 [1996]).[*2]
We are also unpersuaded by plaintiffs' contention thatSupreme Court should have first determined whether the road had ever become a publichighway. Their complaint alleges that the road "historically became a public highway by use,"but the Town abandoned it by nonuse and nonmaintenance. There is no allegation that the roadwas not a public highway prior to the period of alleged abandonment. This unexplainedomission, along with plaintiffs' failure to move to amend the complaint or make any showing ofmerit to their new claim that the road had never become a public highway, supports SupremeCourt's determination to reject their assertion and consider only the issue of abandonment (see Baron v Pfizer, Inc., 42 AD3d627, 630 [2007]; Anderson Props. v Sawhill Tubular Div., Cyclops Corp., 149AD2d 950, 950-951 [1989]).
As for the merits of the abandonment issue, it has long been settled that once a road becomesa public highway, "it is presumed to continue until it is shown to exist no longer" (City ofCohoes v Delaware & Hudson Canal Co., 134 NY 397, 407 [1892]; see Matter ofShawangunk Holdings v Superintendent of Highways of Town of Shawangunk, 101 AD2d905, 907 [1984], appeal dismissed 63 NY2d 773 [1984]). It will be deemed abandoned,however, if it is not traveled or used as a public highway for six years (see Highway Law§ 205 [1]; Matter of Van Aken v Town of Roxbury, 211 AD2d 863, 865 [1995],lv denied 85 NY2d 812 [1995]).
Defendants presented evidence that since at least 1963 the road has been included in theinventory of the Town's public highway system, public maintenance has been periodicallyperformed on the road, and the public has made regular use of it. Such use was proven in part bythe deposition testimony of plaintiffs Jay S. Curtis and Reed G. Hagelin, whose admissionssupported many of the Town's contentions. Further, defendants provided an extensive number ofphotographs of the road which show that the travel lane is clearly defined and unobstructed(see Matter of Smigel v Town of Rensselaerville, 283 AD2d 863, 864 [2001]). By thisevidence, and the continuation presumed for a public highway, defendants made a prima facieshowing that the road was not abandoned (see Matter of Shawangunk Holdings vSuperintendent of Highways of Town of Shawangunk, 101 AD2d at 907; cf. Abess v Rowland, 13 AD3d790, 792 [2004]).
In response, plaintiffs revised their deposition testimonies by claiming that the public useswhich they had described previously—and of which they had complained to the Town inthe past—were primarily by their own family members and invitees. Such self-servingattempts to contradict their prior sworn testimony cannot create questions of fact (see Daisernia v Thomas, 12 AD3d998, 999 [2004]; Campagnano v Highgate Manor of Rensselaer, 299 AD2d 714, 715[2002]). Also, plaintiffs failed to dispute defendants' proof as to the maintenance performedduring the six-year period prior to the commencement of the action. There being no materialquestion of fact raised as to the public's use or maintenance of the road, Supreme Court did noterr by dismissing plaintiffs' causes of action based on abandonment.
Mercure, J.P., Peters, Kane and Malone Jr., JJ., concur. Ordered that the order is affirmed,with costs.