        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

781
CA 14-02213
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


DANIEL V. GALLAWAY, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TOWN OF NORTH COLLINS, TOWN OF NORTH COLLINS
HIGHWAY DEPARTMENT, DEFENDANTS-APPELLANTS,
ET AL., DEFENDANT.


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.


     Appeal from an order of the Supreme Court, Erie County (Henry J.
Nowak, Jr., J.), entered September 18, 2014. The order, among other
things, denied in part the motion of defendants Town of North Collins
and Town of North Collins Highway Department for summary judgment
dismissing the complaint against them.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion of
defendants Town of North Collins and Town of North Collins Highway
Department is granted in its entirety, and the complaint against them
is dismissed.

     Memorandum: 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 AD3d 1387, 1387, lv denied 11 NY3d
715; Cannarozzo v County of Livingston, 13 AD3d 1180, 1181).
                                 -2-                           781
                                                         CA 14-02213

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 AD3d 1002, 1003-1004).

     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 dangerous condition of the
roadway. Thus, defendants cannot be liable for the alleged dangerous
condition unless they affirmatively created the dangerous condition
(see Hume v Town of Jerusalem, 114 AD3d 1141, 1141-1142), and we
conclude that defendants established that they did not create the
alleged dangerous condition. Plaintiff submitted the affidavits of
two experts, who explained that the “gravelly condition” referred to
by plaintiff was caused by excess stone along the right side of the
roadway that defendants had not properly removed after applying the
oil and stone to the roadway. Plaintiff’s experts did not provide,
however, evidence of the existence of excess stone as a result of the
process. Even assuming, arguendo, that there was stone left along the
edge of the roadway following the oil and stone process, as
plaintiff’s experts allege, we conclude that defendants established
that any negligence in that respect was not a proximate cause of the
accident (see Swauger v White, 1 AD3d 918, 919-920). Defendants
established that the sole proximate cause of the accident is that one
of the drivers crossed into the lane of the other driver (see id.).
We note that the police report indicates that plaintiff appeared to
have been traveling “just right” of the center line and that the other
driver had crossed the center line by approximately four to six
inches. We further conclude that the opinions of plaintiff’s experts
that the alleged presence of excess stone along the right side of the
roadway required plaintiff to drive close to the center of the
roadway, thereby placing him in danger of a collision, is conclusory
and speculative (see Martindale, 55 AD3d at 1387-1388).

Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
