| Town of Santa Clara v Yanchitis |
| 2011 NY Slip Op 09072 [90 AD3d 1297] |
| December 15, 2011 |
| Appellate Division, Third Department |
| Town of Santa Clara, Appellant, v Edward Yanchitis et al.,Respondents. |
—[*1] James M. Brooks, Lake Placid, for respondents.
Lahtinen, J. Appeal from an order of the Supreme Court (Demarest, J.), entered October 15,2010 in Franklin County, which denied plaintiff's motion for partial summary judgment.
Plaintiff commenced this action in 2005 contending, among other things, that a 100-foot stripof property known as Back Bay Road Spur on the southwest side of defendants' property in theTown of Santa Clara, Franklin County is a town highway pursuant to Highway Law § 189.In 2007, plaintiff moved for partial summary judgment and Supreme Court denied the motion ina decision that thoroughly discussed the extensive evidence submitted by the parties. Plaintiff didnot appeal. In 2010, plaintiff again moved for partial summary judgment, submitting the papers ithad used in the prior motion as well as adding a report from a professor of geography whoevaluated the cartographic evidence. Defendants' opposing papers included an affidavit fromtheir expert, a professional land surveyor who had also submitted an affidavit in opposition to theoriginal motion for summary judgment. Finding factual issues, Supreme Court again denied themotion and plaintiff now appeals.
We affirm. Initially, we note that "[m]ultiple summary judgment motions in the same actionshould be discouraged in the absence of a showing of newly discovered evidence or othersufficient cause" (Matter ofBronsky-Graff Orthodontics, P.C., 37 AD3d 946, 947 [2007] [internal quotation marksand citation omitted]). Although some further disclosure occurred after the first summaryjudgment motion, the only significant additional proof submitted by plaintiff in [*2]its second motion was its expert's report. There is no indication thatthe further disclosure resulted in proof relevant to the second motion nor is there any explanationas to why a report from an expert could not have been provided in the first motion. Suchcircumstances provide ample basis for denial of plaintiff's motion (see Pavlovich v Zimmet, 50 AD3d1364, 1365 [2008]; Matter of Bronsky-Graff Orthodontics, P.C., 37 AD3d at947-948; Flomenhaft v Fine Arts Museum of Long Is., 255 AD2d 290 [1998]).
Furthermore, viewing the proof in the record in the light most favorable to the nonmovant(see Winne v Town of Duanesburg,86 AD3d 779, 780-781 [2011]) reveals factual issues precluding summary judgment.Establishing a highway by use requires proof that, for a period of 10 years or more, the road "wasused by the public and the municipality exercised dominion and control over the road" (Long Pond Assn., Inc. v Town ofCarmel, 87 AD3d 525, 525 [2011] [internal quotation marks and citation omitted]; see Whitton v Thomas, 25 AD3d996, 997 [2006], lv dismissed 7 NY3d 783 [2006]; Egan v Halverson, 271AD2d 844, 845 [2000]; Highway Law § 189). Here, in addition to conflicting expertopinions, there are also affidavits from individuals familiar with the road who do not agree onvarious important aspects regarding the scope of the use and maintenance of the road. SupremeCourt correctly concluded that triable facts exist.
Mercure, A.P.J., Spain, Malone Jr. and Egan Jr., JJ., concur. Ordered that the order isaffirmed, with costs.