Cheryl Dwyer v Town of Rodman

Dwyer v Town of Rodman 2003 NY Slip Op 18659 [1 AD3d 972] November 21, 2003 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

Cheryl Dwyer et al., Appellants,
v
Town of Rodman, Respondent.

— Appeal from an order of Supreme Court, Jefferson County (Gilbert, J.), entered August 8, 2002, which denied plaintiffs' motion for summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking judgment declaring that defendant did not effectively abandon Babbitts Corner Road, which borders plaintiffs' property. Supreme Court properly denied plaintiffs' motion insofar as it sought summary judgment on the complaint. Although plaintiffs submitted proof establishing that defendant did not comply with the procedural requirements of Highway Law § 205 (1), plaintiffs failed to establish that the road was at one time a town road and that it was not abandoned by operation of law (see Matter of Wills v Town of Orleans, 236 AD2d 889, 890 [1997]; Van Nostrand v Town of Denning, 132 AD2d 93, 97 [1987]; see generally Pless v Town of Royalton, 185 AD2d 659 [1992], affd 81 NY2d 1047 [1993]). The court declined to rule on plaintiffs' motion insofar as it sought summary judgment dismissing the affirmative defense of the statute of limitations, and we do not reach the parties' contentions concerning that affirmative defense (see Matter of Trader v State of New York, 277 AD2d 978 [2000]). Present—Green, J.P., Wisner, Hurlbutt, Kehoe and Hayes, JJ.