Opinion
CA 03-01071.
November 21, 2003.
Appeal from an order of Supreme Court, Jefferson County (Gilbert, J.), entered August 8, 2002, which denied plaintiffs' motion for summary judgment.
Nelson Law Office, Rodman (Deanna R. Nelson of Counsel), for Plaintiffs-Appellants.
Hrabchak Gebo, P.C., Watertown (Mark G. Gebo of Counsel), for Defendant-Respondent.
Before: Present: Green, J.P., Wisner, Hurlbutt, Kehoe, and Hayes, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking judgment declaring that defendant did not effectively abandon Babbitts Corner Road, which borders plaintiffs' property. Supreme Court properly denied plaintiffs' motion insofar as it sought summary judgment on the complaint. Although plaintiffs submitted proof establishing that defendant did not comply with the procedural requirements of Highway Law § 205 (1), plaintiffs failed to establish that the road was at one time a town road and that it was not abandoned by operation of law ( see Matter of Wills v. Town of Orleans, 236 A.D.2d 889, 890; Van Nostrand v. Town of Denning, 132 A.D.2d 93, 97; see generally Pless v. Town of Royalton, 185 A.D.2d 659, affd 81 N.Y.2d 1047). The court declined to rule on plaintiffs' motion insofar as it sought summary judgment dismissing the affirmative defense of the statute of limitations, and we do not reach the parties' contentions concerning that affirmative defense ( see Matter of Trader v. State of New York, 277 A.D.2d 978).