Opinion
January 31, 1992
Appeal from the Supreme Court, Onondaga County, Reagan, J.
Present — Denman, P.J., Pine, Balio, Lawton and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: The court correctly denied plaintiff's motion for summary judgment. In support of its contention that Lacey Road is four rods wide, the Town of Skaneateles relied on chapter 8 of the Laws of 1836 and the survey and order concerning Lacey Road in the Book of Highways maintained in the Town Clerk's office pursuant to that statute. The statute includes an appeal process and provides that the orders made pursuant to its provisions "shall be final and conclusive upon all persons whatsoever." (L 1836, ch 8, § 5.) That proof was sufficient to meet plaintiff's initial burden on its motion.
Defendant Lang, who owns property bordered on the north by part of Lacey Road, responded with his own affidavit, incorporating by reference a 1949 survey of A.J. Clements, a licensed surveyor, showing the road as three rods wide. That survey indicated that it was filed in the Onondaga County Clerk's office in 1949, well over ten years ago, and defendant's affidavit asserted that it was so filed. That survey is presumed to be accurate (see, CPLR 4522). Thus, defendant has raised a factual issue with respect to the width of Lacey Road (see generally, Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065).