Little v. County of Suffolk ( 1979 )

In a negligence action to recover damages for personal injuries, etc., plaintiffs and defendant Town of Huntington separately appeal from (1) an order of the Supreme Court, Suffolk County, dated February 6, 1979, which granted the motion of the defendant County of Suffolk for summary judgment dismissing the complaint and all cross claims as against the said county and (2) a judgment of the same court entered February 26, 1979 upon the said order. Appeals from the order dismissed, without costs or disbursements (see Matter of Aho, 39 NY2d 241, 248). Judgment reversed, on the law, without costs or disbursements, and motion denied. The action arose out of an automobile accident which occurred on Round Swamp Road in the Town of Huntington, County of Suffolk. Plaintiffs’ complaint alleges, inter alia, that the roadway was negligently constructed and maintained. Both the Town of Huntington and the County of Suffolk were named as defendants. The county moved for summary judgment, offering evidence that Round Swamp Road was not a county road and that Suffolk County did not exercise jurisdiction or control over it. No proof was presented as to whether the road was a "town highway”, as defined in subdivision 5 of section 3 of the Highway Law. In fact, the county’s engineer, who testified at an examination before trial, was unable to characterize the road at all other than to say that it was not a county road. By statute, a county has general supervisory responsibility for the maintenance and repair of town highways (see Highway Law, § 102, subds 1, 6; § 139). It may therefore be liable for injuries sustained due to the hazardous condition of such a roadway (see Tharrett v County of St. Lawrence, 24 AD2d 700; cf. Malcuria v Town of Seneca, 66 AD2d 421). Since the county bore the burden of establishing its right to summary judgment (see, e.g., Lambería v Long Is. R. R., 51 AD2d 730), its failure to establish that Round Swamp Road was not a town highway was fatal to its motion. Accordingly, the motion for summary judgment should have been denied. Titone, O’Connor and Hargett, JJ., concur.