Opinion
November 15, 1989
Appeal from the Supreme Court, Erie County, Forma, J.
Present — Dillon, P.J., Callahan, Boomer, Balio and Lawton, JJ.
Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying defendant Town of Aurora's motion for summary judgment dismissing plaintiffs' complaint together with codefendant's cross claims. Plaintiff Sharon Donaldson suffered severe personal injuries when her car left West Falls Road near the intersection of State Route 240, traveled through two unconnected guideposts and rolled down an embankment into Cazenovia Creek. Defendant town, in support of its summary judgment motion, established that it did not own or have any duty to maintain either the roadway or the guideposts. Affidavits from town employees were also submitted which indicated that the town did not remove the fencing between these guideposts. Defendant town has submitted sufficient evidentiary proof to establish its defense as a matter of law, and it is incumbent upon plaintiffs to set forth evidentiary facts in admissible form sufficient to require a trial (see, Zuckerman v City of New York, 49 N.Y.2d 557; Cusano v General Elec. Co., 111 A.D.2d 557, affd 66 N.Y.2d 844). Plaintiffs' assertion that it can be reasonably inferred that the town removed this fencing because the town owned and operated a park next to the county right-of-way where these guideposts were located is merely surmise and is insufficient to defeat summary judgment (see, Zuckerman v City of New York, supra; Goldstein v Edwards, 81 A.D.2d 752; Lerner Stores Corp. v Porklane Hosiery Co., 54 A.D.2d 1072).