| LiFrieri v Town of Smithtown |
| 2010 NY Slip Op 03075 [72 AD3d 750] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Stephanie LiFrieri, Respondent, v Town of Smithtown,Defendant/Third-Party Plaintiff-Appellant. Renee S. Lasher et al., Third-PartyDefendants-Respondents, et al., Third-Party Defendants. |
—[*1] Robert T. Acker, P.C., North Massapequa, N.Y., for plaintiff-respondent. Timoshenko & Scotto, LLP, Staten Island, N.Y. (Victor Timoshenko of counsel), forthird-party defendants-respondents. MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, N.Y. (Catherine H. Friesen ofcounsel), for third-party defendants Marianne LiFrieri and Robert W. Combs.
In an action to recover damages for personal injuries, the defendant third-party plaintiffappeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated May 28, 2009,which denied its motion for summary judgment dismissing the complaint and the third-partycounterclaim asserted against it by the third-party defendants Renee S. Lasher and Neil R.Lasher.
Ordered that the order is reversed, on the law, with one bill of costs payable by therespondents appearing separately and filing separate briefs, and the motion of thedefendant/third-party plaintiff for summary judgment dismissing the complaint and thethird-party counterclaim asserted against it by the third-party defendants Renee S. Lasher andNeil R. Lasher is granted.
The plaintiff allegedly sustained injuries as a result of a motor vehicle accident on a publicroadway. The plaintiff was a passenger in a vehicle owned by the third-party defendantMarianne LiFrieri and operated by the third-party defendant Robert W. Combs, which collidedwith a vehicle operated by the third-party defendant Renee S. Lasher and owned by thethird-party defendant Neil R. Lasher (hereinafter together the Lashers). Prior to the accident, thetwo vehicles were traveling in opposite directions. Renee Lasher alleged that she lost control ofher vehicle due to the presence of hazardous conditions on the road, which caused her vehicle toenter the opposite lane of traffic where the collision occurred.
The plaintiff commenced this action against the Town of Smithtown, and the Towncommenced a third-party action against the Lashers, LiFrieri, and Combs. The Lashers asserted acounterclaim for indemnification or contribution against the Town. The Supreme Court deniedthe Town's [*2]motion for summary judgment dismissing thecomplaint and the third-party counterclaim on the ground that the Town failed to establish, primafacie, that it did not have prior written notice of the alleged hazardous conditions on the road.We reverse.
The Code of the Town of Smithtown § 245-13 states that "[n]o civil action shall bemaintained against the Town of Smithtown for damages or injuries to person . . .sustained by reason of any highway, bridge, culvert, sidewalk, sewer, manhole or appurtenanceor curb being defective, out of repair, unsafe, dangerous or obstructed . . . unlesswritten notice of such defective, unsafe, dangerous or obstructed condition shall be filed with theTown Clerk at least 15 calendar days prior to the event giving rise to the alleged claim."Contrary to the plaintiff's contention, a street is considered a highway within the meaning oflocal ordinances such as the Code of the Town of Smithtown § 245-13 (see Schneid vCity of White Plains, 150 AD2d 549, 550 [1989]; Englehardt v Town of Hempstead,141 AD2d 601, 602 [1988]; Stratton v City of Beacon, 91 AD2d 1018, 1019 [1983]).
The Town established its prima facie entitlement to judgment as a matter of law bysubmitting the affidavit of its Town Clerk, wherein he stated that his search of the Town'srecords revealed no prior written notice of any hazardous condition on the road where theaccident occurred (see Shannon vVillage of Rockville Ctr., 39 AD3d 528 [2007]; Scafidi v Town of Islip, 34 AD3d 669 [2006]; Goldberg vTown of Hempstead, 156 AD2d 639 [1989]). In opposition, no triable issue of fact wasraised. The evidence failed to show that the Town affirmatively created any hazardous conditionon the road which proximately caused the subject accident (see Yarborough v City of New York, 10 NY3d 726 [2008];Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]). Accordingly, the Supreme Courtshould have granted the Town's motion for summary judgment dismissing the complaint and thethird-party counterclaim asserted against it by the Lashers. Florio, J.P., Miller, Eng andChambers, JJ., concur.