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

1360
CA 15-00790
PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ.


MARY PINTER, INDIVIDUALLY AND AS ADMINISTRATRIX
OF THE ESTATE OF ERIN PINTER, DECEASED,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TOWN OF JAVA, TOWN OF JAVA HIGHWAY DEPARTMENT,
DEFENDANTS-APPELLANTS,
WYOMING COUNTY AND WYOMING COUNTY HIGHWAY
DEPARTMENT, DEFENDANTS-RESPONDENTS.


WEBSTER SZANYI LLP, BUFFALO (MICHAEL P. MCCLAREN OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Catherine
R. Nugent Panepinto, J.), entered April 16, 2015. The order denied
the motion of defendants Town of Java and Town of Java Highway
Department for summary judgment dismissing the complaint and cross
claim against them.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted,
and the complaint and cross claim against defendants Town of Java and
Town of Java Highway Department are dismissed.

     Memorandum: Plaintiff commenced this wrongful death action after
decedent lost control of her vehicle, and the vehicle flipped onto its
roof and eventually came to rest in a pond adjacent to the road.
Supreme Court erred in denying the motion of Town of Java and Town of
Java Highway Department (defendants) seeking summary judgment
dismissing the complaint and cross claim against them. Plaintiff did
not oppose that part of defendants’ motion seeking to dismiss the
complaint to the extent that it alleged that defendants were negligent
in allowing the road to exist in an icy or slippery condition, and we
therefore agree with defendants that the court should have granted
their motion to that extent (see Hagenbuch v Victoria Woods HOA, Inc.,
125 AD3d 1520, 1521; Langensiepen v Kruml, 92 AD3d 1302, 1303).

     Plaintiff further alleged in her complaint that defendants were
negligent in failing to install a guardrail to prevent vehicles from
entering the pond. We conclude that defendants met their initial
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                                                         CA 15-00790

burden of establishing their entitlement to summary judgment
dismissing that claim, and that plaintiff failed to raise a triable
issue of fact (see generally Zuckerman v City of New York, 49 NY2d
557, 562). We therefore further agree with defendants that the court
should have granted the motion with respect to that claim, as well.
It is well settled that a municipality is not an insurer of the safety
of its roadways (see Tomassi v Town of Union, 46 NY2d 91, 97). “The
design, construction and maintenance of public highways is entrusted
to the sound discretion of municipal authorities and so long as a
highway may be said to be reasonably safe for people who obey the
rules of the road, the duty imposed upon the municipality is
satisfied” (id. [emphasis added]). A municipality has a duty to
maintain roads in a reasonably safe condition in order to guard
against contemplated and foreseeable risks to motorists, and that duty
includes providing guardrails (see Gomez v New York State Thruway
Auth., 73 NY2d 724, 725; Sweet v Town of Wirt, 23 AD3d 1097, 1098;
Gillooly v County of Onondaga, 168 AD2d 921, 922).

     Defendants submitted proof establishing that the road had been in
existence since the 1800s, that the pond was created by the adjacent
landowner approximately 50 years prior to the accident, and that there
were no previous accidents at the accident site. They further
established that the road had not undergone any major reconstruction
since it was built and that no nationally accepted highway standards
required guardrails at the location of the accident. In opposition to
the motion, plaintiff’s experts did not establish that guardrails were
required under any existing standard, and their opinions were
conclusory and without probative value (see Chunhye Kang-Kim v City of
New York, 29 AD3d 57, 61; cf. Popolizo v County of Schenectady, 62
AD3d 1181, 1182-1183). Plaintiff also failed to raise a triable issue
of fact that there were prior accidents at the site that would have
put defendants on notice of a defective condition (see e.g. Gillooly,
168 AD2d at 921). Plaintiff’s hearsay submissions may not be relied
on where, as here, they are the only proof offered by plaintiff to
establish that defendants had notice that the condition of the highway
was not reasonably safe (see Savage v Anderson’s Frozen Custard, Inc.,
100 AD3d 1563, 1564).




Entered:   December 23, 2015                    Frances E. Cafarell
                                                Clerk of the Court
