Colgan v. Town of Hillsdale — 68 N.Y.2d 788

Majority

p. 788

John W. Colgan et al., Appellants, v Town of Hillsdale, Respondent, et al., Defendant.

Decided September 9, 1986

p. 789

APPEARANCES OF COUNSEL

David L. Krech for appellants.

Carl Rosenbloom for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the defendant town’s motion for summary judgment denied.

Although municipalities have no duty to preserve the lateral support to adjacent land in the construction and maintenance of highways and roads (Radcliff’s Executors v Mayor, 4 NY 195 , 203; see, New York Steam Co. v Foundation Co., 195 NY 43 , 50), municipalities are liable for damages to adjoining property proximately caused by their negligence in construction and maintenance (Radcliff’s Executors v Mayor, supra; Vanguard Tours v Town of Yorktown, 83 AD2d 866 ). Since factual issues exist concerning the defendant’s conduct in maintaining the drainage ditches and backslope adjacent to plaintiffs’ property, summary judgment is inappropriate (Zuckerman v City of New York, 49 NY2d 557 ; cf. Olan v Farrell Lines, 64 NY2d 1092 , 1093).

Chief Judge Wachtler and Judges Meyer, Simons, Kaye,

p. 790

Alexander, Titone and Hancock, Jr., concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.

Cases cited

Radcliff's Executors v. Mayor of Brooklyn 4 NY 195 N.Y. at 203 p. 789
New York Steam Co. v. Foundation Co. 195 NY 43 N.Y. 1909-03-16 at 50 p. 789
Zuckerman v. City of New York 49 NY2d 557 N.Y. 1980-04-01 p. 789
Olan v. Farrell Lines Inc. 64 NY2d 1092 N.Y. 1985-04-25 at 1093 p. 789