Gallaway v. Town of N. Collins

• Decision Date: 19 June 2015
• Docket Number: 781 CA 14-02213
• Citation: 2015 N.Y. Slip Op. 05361,12 N.Y.S.3d 470,129 A.D.3d 1669
• Parties: Daniel V. GALLAWAY, Plaintiff–Respondent, v. TOWN OF NORTH COLLINS, Town of North Collins Highway Department, Defendants–Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1669

12 N.Y.S.3d 470

2015 N.Y. Slip Op. 05361

Daniel V. GALLAWAY, Plaintiff–Respondent

v.TOWN OF NORTH COLLINS, Town of North Collins Highway Department, Defendants–Appellants, et al., Defendant.

781 CA 14-02213

Supreme Court, Appellate Division, Fourth Department, New York.

June 19, 2015.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Michael T. Reagan of Counsel), for Defendants–Appellants.

Collins & Collins Attorneys, LLC, Buffalo (Peter Snodgrass of Counsel), for Plaintiff–Respondent.

PRESENT: SCUDDER, P.J., SMITH, SCONIERS, VALENTINO, and DeJOSEPH, JJ.

OpinionMEMORANDUM:

Plaintiff commenced this action seeking damages for injuries he sustained when his motorcycle collided with a vehicle on a road owned by Town of North Collins and maintained by Town of North Collins Highway Department (collectively, defendants). We agree with defendants that Supreme Court erred in refusing to grant in its entirety their motion seeking summary judgment dismissing the complaint against them.

It is undisputed that plaintiff was traveling southbound on Boston Road, i.e., downhill, and that the other driver was traveling northbound when the collision occurred at a curve in the roadway. Each driver testified at his deposition that he was in his own lane of travel at the time of the collision. Defendants established with the affidavit of their expert that the signs warning of the curve and advising a lesser speed complied with the requirements of the Manual of Uniform Traffic Control Devices (MUTCD) (see 17 NYCRR 2C.05 ; 2C.08 ; Martindale v. Town of Brownville, 55 A.D.3d 1387, 1387, 864 N.Y.S.2d 816, lv. denied 11 N.Y.3d 715, 873 N.Y.S.2d 532, 901 N.E.2d 1286 ; Cannarozzo v. County of Livingston, 13 A.D.3d 1180, 1181, 787 N.Y.S.2d 805 ). Defendants also established that there is no requirement or recommendation that they apply a center line marking on the roadway. Instead, the MUTCD provides that short sections of roadway without a continuous center line marking “may” be marked to control the position of traffic at specific locations, such as around curves (17 NYCRR 3B.01 ). The affidavits of plaintiff's experts, who averred that defendants failed to mark the center line of the roadway, without establishing that they were required to do so, are insufficient to raise an issue of fact whether defendants were negligent in failing to mark the center line of the roadway in the area of the collision (see Jones v. County of Niagara, 15 A.D.3d 1002, 1003–1004, 789 N.Y.S.2d 557 ).

Plaintiff also alleged that defendants were negligent by failing to clear loose stone from the roadway after oil and stone was applied as part of the regular maintenance of the roadway. We note that plaintiff testified at his deposition that he had observed gravel on the road earlier in the day as a result of the shoulder having been “washed out” by recent rain, which he explained was a common occurrence, and that he therefore stayed close to the center of the road to avoid the gravel. Plaintiff testified, however, that he maintained full control of his motorcycle and did not slide or skid on loose gravel. Defendants established that oil and stone was applied in an area north of the accident site and that there was no debris or excess stone in that area. It is undisputed that defendants had not received written notice of an alleged...