Dwyer v. Town of Rodman

Kehoe and Lawton, JJ. (dissenting).

We respectfully dissent. In our view, Supreme Court erred in denying defendant’s motion to dismiss the complaint at the close of plaintiffs’ proof at trial. We agree with the majority that plaintiffs offered sufficient evidence to establish that Babbitts Corner Road was used by the public, but plaintiffs failed to offer any evidence to establish the second essential' element in the test to determine whether a road is a town highway within the meaning of Highway Law § 189, i.e., that defendant maintained the road for the requisite 10-year period (see Salvador…