LaPlant v. Town of Manchester , 737 N.Y.S.2d 746 ( 2002 )

—Appeal from an order of Supreme Court, Ontario County (Doran, J.), entered January 11, 2001, which denied defendant’s motion for summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum: Plaintiff was injured in a one-vehicle accident on Freshour Road in the Town of Manchester when he reached down to adjust the radio and his vehicle left the road and struck a utility pole. Plaintiff commenced this negligence action alleging that he was injured as a result of the “soft shoulder” of the roadway, which had been recently reconstructed as part of a paving project. Supreme Court erred in denying defendant’s motion for summary judgment dismissing the complaint. Defendant met its initial burden by submitting the deposition testimony of plaintiff wherein he admitted that he drove off the road when he reached to adjust his radio and by submitting evidence that the resurfacing and shoulder reconstruction were in accordance with the applicable specifications (see generally, Zuckerman v City of New York, 49 NY2d 557, 562). Plaintiff failed to raise a material issue of fact by his expert’s conclusory affidavit (see, Phillips v McClellan St. Assoc., 262 AD2d 748; see also, Sorriento v Daddario, 282 AD2d 957, 958-959), which in any event fails to indicate that the “alleged defect” caused or contributed to the accident (see, Elmer v Kratzer, 249 AD2d 899, 901-902, appeal dismissed 92 NY2d 921).

Adi concur except Gorski and Lawton, JJ., who dissent and vote to affirm in the following memorandum.