COLGAN v. TOWN OF HILLSDALE

MEMORANDUM.

The order of the Appellate Division should be reversed, with costs, and the defendant town's motion for summary judgment denied.

Although municipalities have no duty to preserve the lateral support to adjacent land in the construction and maintenance of highways and roads (Radcliff's Executors v Mayor, 4 N.Y. 195, 203; see, New York Steam Co. v Foundation Co., 195 N.Y. 43, 50), municipalities are liable for damages to adjoining property proximately caused by their negligence in construction and maintenance (Radcliff's Executors v Mayor, supra; Vanguard Tours v Town of Yorktown, 83 A.D.2d 866). Since factual issues exist concerning the defendant's conduct in maintaining the drainage ditches and backslope adjacent to plaintiffs' property, summary judgment is inappropriate (Zuckerman v City of New York, 49 N.Y.2d 557; cf. Olan v Farrell Lines, 64 N.Y.2d 1092, 1093).

Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, etc.