BENNETT, DIFILIPPO & KURTZHALTS, LLP, HOLLAND (RONALD P.
BENNETT OF COUNSEL), FOR PLAINTIFF-APPELLANT.
BARTLO, HETTLER, WEISS & TRIPI, KENMORE (PAUL D. WEISS OF
COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND NEMOYER,
from a judgment (denominated order) of the Supreme Court,
Erie County (John A. Michalek, J.), entered October 20, 2015.
The judgment denied the motion of plaintiff for summary
judgment, dismissed the complaint, and declared that
plaintiff is responsible for the expenses of repairing the
Brooklea Drive bridge in the Village of East Aurora and any
other bridge in the Village of East Aurora of which defendant
has not assumed control, care and maintenance.
hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, the complaint
is reinstated, the motion is granted, the cross motion is
denied, and judgment is granted in favor of plaintiff as
ADJUDGED AND DECLARED that the Village of East Aurora is
responsible for the supervision, control, care, and
maintenance of the Brooklea Drive bridge located within its
In May 2010, the New York State Department of Transportation
identified the Brooklea Drive bridge in the Village of East
Aurora as in need of repair. Plaintiff, Town of Aurora
(Town), commenced this action seeking a declaration that
defendant, Village of East Aurora (Village), is responsible
for the costs of repair of the Brooklea Drive bridge, and the
Village asserted a counterclaim seeking a declaration that
the Town is responsible for such costs. The Town moved for
summary judgment on its complaint. The Village cross-moved
for summary judgment on its counterclaim but further asserted
that the Town is responsible for the care of bridges within
the Village in addition to the Brooklea Drive bridge. Supreme
Court denied the motion, dismissed the complaint, granted the
cross motion, and declared that the Town is responsible for
the costs of repairing the Brooklea Drive bridge. In response
to the Village's assertion with respect to additional
bridges, the court further declared that the Town "is
responsible for the expenses of repairing any other bridge
located within the boundaries of the Village... with respect
to which the Village... has not assumed control, care and
maintenance under Section 6-606 of the Village Law."
conclude that the Town is entitled to judgment, and we
therefore reverse. As a preliminary matter, we note that,
although the court declared the rights of the parties, it
erred in dismissing the complaint (cf. Pless v Town of
Royalton, 185 A.D.2d 659, 660, affd 81 N.Y.2d
104; see generally Maurizzio v Lumbermens Mut. Cas.
Co., 73 N.Y.2d 951, 954).
undisputed that the Village planned, financed, and
constructed the Brooklea Drive bridge more than 40 years ago
and did not advise the Town of the Town's alleged
maintenance and repair responsibility until 2010. The record
establishes that the Village has exclusive supervision and
control over the bridge, and indeed, was the only entity ever
to exercise such supervision and control (see
Village Law § 6-604). The record also establishes that
there was no contract between the Village and the Town, nor
any negotiation about the Brooklea Drive bridge, nor any
board resolution, made pursuant to Village Law § 6-608
by which the Town assumed maintenance and repair
responsibility. We therefore conclude that responsibility for
the Brooklea Drive bridge properly rests with the Village.
to the assertion of the Village and the conclusion of the
court, it was not necessary for the Village to pass a
resolution pursuant to Village Law § 6-606 in order to
assume the control, care, and maintenance of the bridge.
Village Law § 6-604 provides in part that, "[i]f
the board of trustees of a village has the supervision and
control of a bridge therein, it shall continue to exercise
such control under this chapter." Although Village Law
§ 6-606 provides that a village "may" obtain
control of a bridge by a resolution of its board, it does not
provide that a village "may only" obtain control by
that method (see § 6-606). "[W]here a
statute describes the particular situations in which it is to
apply, an irrefutable inference must be drawn that what is
omitted or not included was intended to be omitted and
excluded" (Village of Webster v Town of
Webster, 270 A.D.2d 910, 912, lv dismissed in part
and denied in part 95 N.Y.2d 901; see Golden v
Koch, 49 N.Y.2d 690, 694; see also
McKinney's Cons Laws of NY, Book 1, Statutes § 240;
Matter of 1605 Book Ctr. v Tax Appeals Tribunal, 83
N.Y.2d 240, 245-246, cert denied 513 U.S. 811). We
therefore reject the Village's statutory interpretation,
i.e., that a village could unilaterally construct and
maintain a bridge only to later disclaim responsibility when
repair costs arose. Such an interpretation invites
objectionable, unreasonable, or absurd results (see
Matter of Monroe County Pub. Sch. Dists. v Zyra, 51
A.D.3d 125, 130).
court further erred in declaring the rights of the parties
with respect to bridges besides the Brooklea Drive bridge.
Any issues concerning those other bridges were not properly
before the court, because they were not raised in the
pleadings (see generally Richardson v Bryant, 66
A.D.3d 1411, 1412). The declaration with respect to those
other bridges therefore constitutes an ...