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

1304
CA 16-00695
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


BRADFORD PETTIT, INDIVIDUALLY AND AS EXECUTOR
OF THE ESTATE OF ROSE V. PETTIT, DECEASED, AND
LONNIE KAPFER, PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

COUNTY OF LEWIS AND BOARD OF LEGISLATORS FOR
COUNTY OF LEWIS, DEFENDANTS-RESPONDENTS.


CONBOY, MCKAY, BACHMAN & KENDALL, LLP, CANTON (SCOTT B. GOLDIE OF
COUNSEL), FOR PLAINTIFFS-APPELLANTS.

BARCLAY DAMON, LLP, SYRACUSE (ANDREW J. LEJA OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Lewis County (Peter A.
Schwerzmann, A.J.), entered July 1, 2015. The order, inter alia,
denied the motion of plaintiffs for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this hybrid CPLR article 78 proceeding and
declaratory judgment action, plaintiffs appeal from an order that,
inter alia, denied their motion for summary judgment seeking a
declaration that two local laws that permitted all-terrain vehicles to
access county roads were null and void because they violate Vehicle
and Traffic Law § 2405 (1). We affirm. We note at the outset that,
inasmuch as the sole challenge is to the validity of the legislative
enactments, “this is properly only a declaratory judgment action”
(Parker v Town of Alexandria, 138 AD3d 1467, 1467). We further note
that plaintiffs have abandoned any contention that Supreme Court erred
in granting that part of defendants’ cross motion for summary judgment
dismissing the complaint as asserted by plaintiff Bradford Pettit,
individually and as executor of the estate of Rose V. Pettit, on the
ground that he lacks standing, inasmuch as they have not raised that
contention on appeal (see Ciesinski v Town of Aurora, 202 AD2d 984,
984). The contention of Lonnie Kapfer (plaintiff) that he is entitled
to summary judgment based upon the doctrine of law of the case is not
preserved for our review (see Matter of Piccillo, 43 AD3d 1344, 1344).
In any event, we conclude that plaintiff’s contention lacks merit
because the doctrine “applies only to legal determinations that were
necessarily resolved on the merits in a prior decision” (Town of
Angelica v Smith, 89 AD3d 1547, 1550 [internal quotation marks
                                 -2-                          1304
                                                         CA 16-00695

omitted]), and here the prior legal determinations relied upon by
plaintiff were not resolved on the merits. Furthermore, even
assuming, arguendo, that plaintiff met his initial burden of
establishing his entitlement to judgment as a matter of law (see
generally Zuckerman v City of New York, 49 NY2d 557, 562), viewing the
evidence in the light most favorable to defendants, as we must (see
Russo v YMCA of Greater Buffalo, 12 AD3d 1089, 1089, lv dismissed 5
NY3d 746), we conclude that defendants raised triable issues of fact
whether their legislative actions violate Vehicle and Traffic Law
§ 2405 (1).




Entered:   December 23, 2016                   Frances E. Cafarell
                                               Clerk of the Court
