Powell v. Gates-Chili Central School Dist., GATES-CHILI
| Decision Date | 10 February 1977 |
| Docket Number | GATES-CHILI |
| Citation | 361 N.E.2d 1039,393 N.Y.S.2d 390,41 N.Y.2d 827 |
| Parties | , 361 N.E.2d 1039 Theodore W. POWELL et al., Plaintiffs, v.CENTRAL SCHOOL DISTRICT et al., Appellants, and Town of Gates, Respondent, et al., Defendants. |
| Court | New York Court of Appeals Court of Appeals |
William V. Gough, Rochester, for apopellants.
Thomas E. Goldman, Rochester, for respondent.
The appeal from the order of the Appellate Division denying a motion to amend cross claims should be dismissed, without costs, upon the ground that the order does not finally determine the action within the meaning of the Constitution. The order of the Appellate Division, 50 A.D.2d 1080, 378 N.Y.S.2d 650 granting a motion to dismiss cross claims should be affirmed, without costs. On any view of the school district's pleading allegations, assertions, and contentions with regard to its claim over against the town, whether on a theory of indenmnification or relative apportionment of liability, it may not recover, as a matter of law. The argument of the creation of a 'trap' by reason of incompleted salting of the highway and the ramp is without merit. The incompleted salting in subzero weather shortly after the storm did not constitute the kind of 'affirmative action' with regard to snow and ice conditions upon which liability may be based. Even if the highway maintenance agreement were alleged and proved, liability would still be based ultimately upon negligence by the town and not on its breach of agreement with the county to maintain the highway.
On appeal from order denying motion to amend cross claims: Appeal dismissed.
On appeal from order granting motion to dismiss cross claims: Order affirmed.
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...& Co., is nonfinal. As a result, the appeal as against John T. Brady & Co. must be dismissed. (See Powell v. Gates-Chili Cent. School Dist., 41 N.Y.2d 827, 393 N.Y.S.2d 390, 361 N.E.2d 1039.) As to the Appellate Division's dismissal of plaintiff's complaint against the City of New York for ......
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Powell v. Gates-Chili C.S.D., GATES-CHILI
...granting motion to dismiss cross-claims: Order, 50 A.D.2d 1080, 378 N.Y.S.2d 650 affirmed, without costs. Memorandum. (See 393 N.Y.S.2d 390, 361 N.E.2d 1039). All ...