Cities Service Oil Co. v. City of New York

• Decision Date: 20 November 1958
• Citation: 5 N.Y.2d 110,180 N.Y.S.2d 769
• Parties: , 154 N.E.2d 814 CITIES SERVICE OIL COMPANY et al., Appellants, v. CITY OF NEW YORK et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 769

180 N.Y.S.2d 769

5 N.Y.2d 110, 154 N.E.2d 814

CITIES SERVICE OIL COMPANY et al., Appellants, v. CITY OF NEW YORK et al., Respondents.

Court of Appeals of New York.

Nov. 20, 1958.

George H. Colin and Francis J. Mulderig, New York City, for appellants.

Peter Campbell Brown, Corp. Counsel, New York City (William A. Marks, Seymour B. Quel and Francis I. Howley, New York City, of counsel), for City of New York, respondent.

Edwin G. F. Kelly, Daniel T. Scannell, Brooklyn, and Helen R. Cassidy, New York City, for New York City Transit Authority, respondent.

FULD, Judge.

Claiming that their right of access to their gasoline station has been unlawfully invaded and that such invasion constitutes a taking of property without due process of law, Cities Service Oil Company and Frank Bronchick, the owner and lessee, respectively, of the premises, seek injunctive relief and damages an injunction to restrain the City of New York and the New York City Transit Authority from maintaining bus stops on the two streets upon which their property abuts, damages for losses assertedly caused by the interference with their business. The court at Special Term dismissed the complaint and the Appellate Division unanimously affirmed the resulting judgment. The appeal is taken to this court as of right on asserted constitutional grounds.

The plaintiffs' gasoline station is located in Brooklyn, at the northwest corner of the intersection formed by two busy thoroughfares, Flatbush Avenue and Kings Highway. On each side of the property fronting these streets, there are a pair of curb cuts installed and maintained pursuant to permits issued by the city (Administrative Code of City of New York, § C26-228.0); the cuts are each 30 feet long, almost 40 feet apart on Flatbush Avenue and about 55 feet apart on Kings Highway. City-owned buses, running south on Flatbush Avenue and west on Kings Highway, stop to discharge and take on passengers directly in front of the plaintiffs' premises. The bus stop on Kings Highway was established more than 25 years ago, while that on Flatbush Avenue was established in 1951, when bus service was substituted for streetcar service.

The traffic light at the intersection is operated alternately on both sides on a 60-second cycle. On Flatbush Avenue, where, the plaintiffs allege, the interference with ingress and egrees is greatest, most of the morning traffic is northbound so that there are at that time very few passengers embarking and alighting at the bus stop in front of the plaintiffs' station. However, because of the short headway between the buses 80 seconds during the morning rush hours and two minutes during the afternoon and evening rush hours when the light is red to southbound traffic, two southbound buses may be standing in front of the plaintiffs' premises at the same time.

According to the City Commissioner of Traffic, to whom is delegated the power of establishing bus stops (see New York City Charter, § 1063), the two stops here in question were selected 'to provide for the transfer of passengers between the two intersecting bus lines without requiring' passengers to traverse either of the two busy crossings. He had given careful study to the problem, testified the commissioner, and, based on considerations of 'public safety,' 'movement of traffic' and 'access to property', it was his conclusion that the location of the two stops were they are is 'the most practical and feasible location that can be devised'. To the suggestion that the Flatbush Avenue stop be moved from where it is, on the northwest corner, to the opposite corner, the southwest one near a bank which had no objection to a bus stop the commissioner stated that such a shift would not only reduce the number of available parking spaces, but would result in the highly undesirable traffic pattern of two bus stops directly across from each other on Flatbush Avenue.

It is the plaintiffs' contention that their right of ingress and egress is a 'paramount' property right and that the maintenance of the bus stops constitutes an unreasonable interference with the right. On the contrary, it is the right of the public to the use of the streets which is 'absolute and paramount'. (Deshong v. City of New York, 176 N.Y. 475, 483-484, 68 N.E. 880, 882; see, also, Jones Beach Blvd. Estate v. Moses, 268 N.Y. 362, 368, 197 N.E. 313, 315, 100 A.L.R. 487; Sauer v. City of New York, 180 N.Y. 27, 31, 72 N.E. 579, 70 L.R.A. 717 affirmed 206 U.S. 536, 27 S.Ct. 686, 51 L.Ed. 1176.) To promote and facilitate travel on street and highway, a municipality may, therefore, in the exercise of an unquestioned governmental function, regulate and control traffic and public transportation. Unless arbitrary and capricious, such an act 'will not be restrained, nor will the courts assume the management and control of (the) highways' (Perlmutter v. Greene, 259 N.Y. 327, 334, 182 N.E. 5, 7, 81 A.L.R. 1543), for, as Special Referee Steinbrink aptly remarked at Special Term, any judicial interference with the expert judgment of those deputed to regulate traffic is likely to cause 'confusion and disorder' in the administration of the traffic laws and result in 'great inconvenience' to the public.

In view, then, of the community interest and concern in safe and unimpeded public travel, it follows, as we have already had occasion to write, that 'The rights of an abutter are subject to the right of (a city) to regulate and control the public highways for the benefit of the traveling public. (Cases cited.) Although 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, supra, 268 N.Y. 362, 368, 197 N.E. 313, 315.) A municipality may not, without paying just compensation, maintain an obstruction which bars an owner from access to his property (cf. Waldorf-Astoria Hotel Co. v. City of New York, 212 N.Y. 97, 103, 105 N.E. 803), but a regulation causing only minor and intermittent interference will not be stricken as invalid. In the Jones Beach case, for instance, where the regulation was ...