CAVE v. TOWN OF GALEN (2005)

 Plaintiff commenced this action seeking damages for injuries she sustained when she lost control of her vehicle and struck a post set in concrete in the yard of a landowner adjacent to a highway in defendant Town of Galen (Town).   Plaintiff alleged, inter alia, that the Town and its highway department (Town defendants) were negligent in allowing the landowner to place the post in the Town's right-of-way too close to the roadway, thereby creating a hazardous condition.   Supreme Court properly granted the motion of the Town defendants for summary judgment dismissing the complaint against them.   As the court properly determined, the Town defendants owed plaintiff no duty with regard to “ ‘a fixed object placed within the public right-of-way but outside the travel portion of the highway’ ” (Clark v. City of Lockport, 280 A.D.2d 901, 902, 720 N.Y.S.2d 687, lv. dismissed in part and denied in part 96 N.Y.2d 932, 733 N.Y.S.2d 367, 759 N.E.2d 365;  see Tomassi v. Town of Union, 46 N.Y.2d 91, 97-98, 412 N.Y.S.2d 842, 385 N.E.2d 581).   We further note that plaintiff's reliance on the New York State Department of Transportation Highway Design Manual is misplaced.   There is no authority, statutory or otherwise, mandating that the Town defendants comply with that manual in the design of their highways.   In any event, it is well settled that compliance with design standards adopted after the construction of a highway is not required unless the municipality undertakes “significant repair or reconstruction” that would provide an opportunity for compliance with the new standards (Preston v. State of New York, 6 A.D.3d 835, 835-836, 775 N.Y.S.2d 115, lv. denied 3 N.Y.3d 601, 782 N.Y.S.2d 404, 816 N.E.2d 194;  see Vizzini v. State of New York, 278 A.D.2d 562, 563, 717 N.Y.S.2d 415).   Here, there is no evidence in the record before us that there was such repair or reconstruction.

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

MEMORANDUM: