VILLAGE OF MAMARONECK v. STATE

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Supreme Court, Appellate Division, Second Department, New York.

VILLAGE OF MAMARONECK, appellant, v. STATE of New York, et al., respondents.

Decided: May 27, 2008

STEVEN W. FISHER, J.P., FRED T. SANTUCCI, RUTH C. BALKIN, and ARIEL E. BELEN, JJ. Silverberg Zalantis, LLP, White Plains, N.Y. (Katherine Zalantis of counsel), for appellant. Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael S. Belohlavek and Patrick J. Walsh of counsel), for respondents.

In an action, inter alia, for a judgment declaring that the defendants are obligated to maintain, repair, and/or replace certain catch basins, the plaintiff appeals from an order of the Supreme Court, Westchester County (Smith, J.), dated April 30, 2007, which granted the defendants' motion for summary judgment.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment declaring that the defendants are not obligated to maintain, repair, and/or replace the subject catch basins.

The defendants established their prima facie entitlement to summary judgment by demonstrating that they bore no responsibility to maintain, repair, and/or replace the plaintiff's drainage system along Route US-1 pursuant to Highway Law § 46 (see Mason v. State of New York, 180 A.D.2d 63, 66, 583 N.Y.S.2d 604;  Washington County Sewer Dist. No. 2 v. White, 177 A.D.2d 204, 206, 581 N.Y.S.2d 485).   In opposition, the plaintiff failed to raise a triable issue of fact.   Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Westchester County, for the entry of a judgment declaring that the defendants are not obligated to maintain, repair, and/or replace the subject catch basins (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670, appeal dismissed, 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163, cert. denied, 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).

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