Opinion
Argued January 5, 1977
Decided February 10, 1977
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, AUSTIN W. ERWIN, J.
William V. Gough for appellants.
Thomas E. Goldman for respondent.
MEMORANDUM. The appeal from the order of the Appellate Division denying a motion to amend cross claims should be dismissed, without costs, upon the ground that the order does not finally determine the action within the meaning of the Constitution. The order of the Appellate Division granting a motion to dismiss cross claims should be affirmed, without costs. On any view of the school district's pleading allegations, assertions, and contentions with regard to its claim over against the town, whether on a theory of indemnification or relative apportionment of liability, it may not recover, as a matter of law. The argument of the creation of a "trap" by reason of incompleted salting of the highway and the ramp is without merit. The incompleted salting in subzero weather shortly after the storm did not constitute the kind of "affirmative action" with regard to snow and ice conditions upon which liability may be based. Even if the highway maintenance agreement were alleged and proved, liability would still be based ultimately upon negligence by the town and not on its breach of agreement with the county to maintain the highway.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
On appeal from order denying motion to amend cross claims: Appeal dismissed.
On appeal from order granting motion to dismiss cross claims: Order affirmed.