| Wahl v County of Wayne |
| 2010 NY Slip Op 08290 [78 AD3d 1608] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| Gary A. Wahl et al., Respondents, v County of Wayne,Appellant. |
—[*1] Foley and Foley, Palmyra (James F. Foley of counsel), for plaintiffs-respondents.
Appeal from an order of the Supreme Court, Wayne County (Daniel G. Barrett, A.J.), enteredMarch 4, 2010 in a personal injury action. The order, insofar as appealed from, denied the motion ofdefendant for summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law by grantingin part defendant's motion and dismissing the negligence cause of action insofar as it is based on thealleged violation of Highway Law § 139 and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by plaintiffGary A. Wahl, a volunteer fireman, when he was struck by a vehicle while directing traffic at anaccident scene. Defendant appeals from an order that, inter alia, denied its motion for summaryjudgment dismissing the complaint. Contrary to defendant's contention, Supreme Court properlydetermined that the complaint did not raise new legal theories outside the scope of the notice of claim(cf. Moore v County of Rockland, 192 AD2d 1021, 1023 [1993]). We agree with defendant,however, that the court erred in denying that part of its motion seeking summary judgment dismissingthe negligence cause of action insofar as it is based on the alleged violation of Highway Law §139. Defendant owns neither of the roads that intersect in the area where plaintiff was directing traffic,and thus it cannot be said that defendant had "charge of the repair or maintenance" of those roads(Highway Law § 139 [1]). We therefore modify the order accordingly. Present—Smith,J.P., Fahey, Lindley, Sconiers and Gorski, JJ.