Aero Drive-In, Inc. v. Town of Cheektowaga, DRIVE-I

• Decision Date: 27 May 1988
• Docket Number: INC,DRIVE-I
• Citation: 529 N.Y.S.2d 613,140 A.D.2d 932
• Parties: AERO, Respondent, v. TOWN OF CHEEKTOWAGA, Donald J. Wegner, Kenneth J. Meyers, Frank E. Swiatek, Thomas R. Johnson, Jr., Frank J. Dux, William P. Rogowski, John V. Rogowski and Patricia Jaworowicz, the latter seven respondents as constituting the Town Board of the Town of Cheektowaga, and Alfred Wnek, as Town Superintendent of Highways in the Town of Cheektowaga, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 613

529 N.Y.S.2d 613

140 A.D.2d 932

AERO DRIVE-IN, INC., Respondent, v. TOWN OF CHEEKTOWAGA, Donald J. Wegner, Kenneth J. Meyers,

Frank E. Swiatek, Thomas R. Johnson, Jr., Frank J. Dux,

William P. Rogowski, John V. Rogowski and Patricia

Jaworowicz, the latter seven respondents as constituting the

Town Board of the Town of Cheektowaga, and Alfred Wnek, as

Town Superintendent of Highways in the Town of Cheektowaga,

Appellants.

Supreme Court, Appellate Division,

Fourth Department.

May 27, 1988.

Thomas E. Andruschat, East Aurora, for appellants.

Ralph Mohr, Lancaster, for respondent.

DILLON, P.J., and BOOMER, PINE, BALIO, and LAWTON, JJ.

MEMORANDUM:

Plaintiff, the owner of Holiday City, a six-theater, two-restaurant complex in the Town of Cheektowaga, sought to compel defendants to reopen two town highways which provided additional access to plaintiff's parking lot. Plaintiff waived any claim to monetary damages. The court erred in ordering defendants to remove the metal barriers from those town highways and in permanently enjoining defendants from blocking those streets in the future. A municipality may regulate and control traffic, and unless its acts are arbitrary and capricious, courts will not intervene ( Cities Serv. Oil Co. v. City of New York, 5 N.Y.2d 110, 115, 180 N.Y.S.2d 769, 154 N.E.2d 814, rearg. denied 5 N.Y.2d 1041, 185 N.Y.S.2d 1025, 158 N.E.2d 131, cert. denied 360 U.S. 934, 79 S.Ct. 1453, 3 L.Ed.2d 1546). An abutting owner's rights are subject to the municipality's right to regulate traffic for the benefit of the public and "[a]lthough the abutting owner may be inconvenienced by a regulation, if it is reasonably adapted to benefit the traveling public he has no remedy unless given one by some express statute" ( Jones Beach Blvd. Estate v. Moses, 268 N.Y. 362, 368, 197 N.E. 313). Defendants presented proof at trial that their action was based on concern for the safety of residents of the barricaded streets, which clearly is a legitimate basis for the exercise of power to regulate the use of highways ( see, Bakery Salvage Corp. v. City of Lackawanna, 24 N.Y.2d 643, 646, 301 N.Y.S.2d 581, 249 N.E.2d 438, mot. to amend remittitur granted 24 N.Y.2d 1025, 302 N.Y.S.2d 845, 250 N.E.2d 247; cf., Quaglia v. Incorporated Vil. of Munsey Park, 44 N.Y.2d 772, 406 N.Y.S.2d 30, 377 N.E.2d 473). We further note that we need not determine whether defendants' action constituted a taking of plaintiff's property ( cf., Sukiennik v. State of...