DWYER v. TOWN OF RODMAN (2005)

Defendant appeals from a judgment rendered following a jury trial declaring that Babbitts Corner Road is a town highway created by use (see Highway Law § 189) and that defendant did not abandon the highway prior to New York State's acquisition of land adjacent to the highway (see § 205[1] ).   Contrary to defendant's contention, the verdict with respect to both issues is supported by sufficient evidence (see LaSalle Co. v. Town of Hillsdale, 199 A.D.2d 685, 605 N.Y.S.2d 154).   Defendant failed to preserve for our review its contention that Supreme Court's supplemental charge to the jury was erroneous (see Pagnella v. Action For a Better Community, 57 A.D.2d 1076, 395 N.Y.S.2d 834).   The contention of defendant that it is unable to carry out its duties pursuant to the judgment is not properly before us (see Cogan v. Madeira Assoc., 1 A.D.3d 1066, 1068, 766 N.Y.S.2d 475).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is affirmed with costs.

We respectfully dissent.   In our view, Supreme Court erred in denying defendant's motion to dismiss the complaint at the close of plaintiffs' proof at trial.   We agree with the majority that plaintiffs offered sufficient evidence to establish that Babbitts Corner Road was used by the public, but plaintiffs failed to offer any evidence to establish the second essential element in the test to determine whether a road is a town highway within the meaning of Highway Law § 189, i.e., that defendant maintained the road for the requisite 10-year period (see Salvador v. New York State Dept. of Transp., 234 A.D.2d 741, 742, 651 N.Y.S.2d 227;  see generally Town of Addison v. Meeks, 233 A.D.2d 843, 844, 649 N.Y.S.2d 274, lv. denied 89 N.Y.2d 808, 655 N.Y.S.2d 888, 678 N.E.2d 501;  LaSalle Co. v. Town of Hillsdale, 199 A.D.2d 685, 686, 605 N.Y.S.2d 154).   Contrary to plaintiffs' contention, maps identifying Babbitts Corner Road as a town road are insufficient, in the absence of the requisite evidence of maintenance by defendant, to establish that it is a town highway within the meaning of Highway Law § 189 (see Matter of Desotelle v. Town Bd. of Town of Schuyler Falls, 301 A.D.2d 1003, 1003-1004, 754 N.Y.S.2d 457).   In addition, the reliance by plaintiffs upon a prior version of Highway Law § 3 in support of their contention that Babbitts Corner Road is a town highway is misplaced.   In order to rely on that prior version, it must be assumed that Babbitts Corner Road was at all times a town highway, and that was the precise issue at trial and presently before this Court.

Therefore, we would reverse the judgment in favor of plaintiffs, grant defendant's motion and dismiss the complaint.

MEMORANDUM: