GARY WAHL AND BEVERLY WAHL PLAINTIFFS RESPONDENTS v. COUNTY OF WAYNE DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting in part defendant's motion and dismissing the negligence cause of action insofar as it is based on the alleged violation of Highway Law § 139 and as modified the order is affirmed without costs.

Memorandum:  Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Gary A. Wahl, a volunteer fireman, when he was struck by a vehicle while directing traffic at an accident scene.   Defendant appeals from an order that, inter alia, denied its motion for summary judgment dismissing the complaint.   Contrary to defendant's contention, Supreme Court properly determined that the complaint did not raise new legal theories outside the scope of the notice of claim (cf.  Moore v. County of Rockland, 192 A.D.2d 1021, 1023).   We agree with defendant, however, that the court erred in denying that part of its motion seeking summary judgment dismissing the negligence cause of action insofar as it is based on the alleged violation of Highway Law § 139.   Defendant owns neither of the roads that intersect in the area where plaintiff was directing traffic, and thus it cannot be said that defendant had “charge of the repair or maintenance” of those roads (Highway Law § 139[1] ).   We therefore modify the order accordingly.

Patricia L. Morgan

Clerk of the Court