| Foley v County of Suffolk |
| 2011 NY Slip Op 00350 [80 AD3d 658] |
| January 18, 2011 |
| Appellate Division, Second Department |
| Gregory R. Foley, Appellant, v County of Suffolk et al.,Defendants, and Town of Brookhaven, Respondent. |
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In an action to recover damages for personal injuries, the plaintiff appeals from (1) an orderof the Supreme Court, Suffolk County (Pitts, J.), dated March 12, 2010, which granted themotion of the defendant Town of Brookhaven for summary judgment dismissing the complaintinsofar as asserted against it and denied, as academic, his cross motion to compel the defendantTown of Brookhaven to produce additional witnesses for depositions, and (2) a judgment of thesame court entered June 28, 2010, which, upon the order, is in favor of the defendant Town ofBrookhaven and against it, dismissing the complaint.
Ordered that the appeal from order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendant Town of Brookhaven.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
On the evening of November 9, 2007, the plaintiff was skateboarding in the Town ofBrookhaven, on or around Canal Road at or near the intersection of Morgan Avenue South, whenhe was allegedly struck by a vehicle owned and operated by the defendant Frederick J. Herzog,thus sustaining injuries. The plaintiff commenced this action against the Town, the County ofSuffolk, and Herzog. The plaintiff alleged, among other things, that the Town was liable basedon its failure to repaint the white line dividing the shoulder from the westbound travel lane inwhich Herzog was driving. The Town moved for summary judgment dismissing the complaintinsofar as asserted against it, and the plaintiff cross-moved to compel the Town to producefurther witnesses for deposition. The Supreme Court granted the Town's motion, finding that theTown established, prima facie, that it was entitled to qualified immunity from liability arisingfrom its highway [*2]planning decisions, and in opposition, theplaintiff failed to raise a triable issue of fact. In light of its determination, the Supreme Courtdenied the plaintiff's cross motion as academic. The plaintiff appeals.
We affirm the award of summary judgment to the Town, but on a different ground from thatrelied upon by the Supreme Court. The Town established, prima facie, that it was entitled tojudgment as a matter of law dismissing the complaint to the extent it was based on the allegationthat it was liable for failing to repaint the road markings, based on lack of prior written notice ofthe defect. On this issue, the Town submitted an affidavit of its expert, who stated that her searchof the records of the Town's Department of the Highway Superintendent, Division of TrafficSafety, and of the Town Clerk revealed no prior written notice of the allegedly defective roadwaypaint in the vicinity of the accident in the three years prior to the accident (seeBrookhaven Town Code § 84-1; Monteleone v Incorporated Vil. of FloralPark, 74 NY2d 917 [1989]; Dailey vVillage of Nyack, 78 AD3d 882 [2010]; Pagano v Town of Smithtown, 74 AD3d 1304 [2010]; LiFrieri v Town of Smithtown, 72AD3d 750 [2010]). In opposition, the plaintiff failed to raise a triable issue of fact.
In light of our determination, we need not reach the parties' remaining contentions regardingthe Town's entitlement to qualified immunity or proximate cause. The plaintiff's remainingcontentions are without merit.
Accordingly, the Supreme Court properly granted the Town's motion for summary judgmentdismissing the complaint insofar as asserted against it, and properly denied, as academic, theplaintiff's cross motion to compel the Town to produce additional witnesses for deposition.Skelos, J.P., Eng, Belen and Lott, JJ., concur.