Dandomar Co. v. Town of Pleasant Valley Town Bd.

• Decision Date: 31 August 2016
• Citation: 2016 N.Y. Slip Op. 05905,37 N.Y.S.3d 292,142 A.D.3d 681
• Parties: DANDOMAR COMPANY, LLC, appellant, v. TOWN OF PLEASANT VALLEY TOWN BOARD, et al., respondents.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 681

37 N.Y.S.3d 292

2016 N.Y. Slip Op. 05905

DANDOMAR COMPANY, LLC, appellant,

v.TOWN OF PLEASANT VALLEY TOWN BOARD, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 31, 2016.

Corbally, Gartland and Rappleyea, LLP, Poughkeepsie, NY (Allan B. Rappleyea of counsel), for appellant.

Stenger, Roberts, Davis & Diamond, LLP, Wappingers Falls, NY (Kenneth M. Stenger and Karen P. MacNish of counsel), for respondents.

RUTH C. BALKIN, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and VALERIE BRATHWAITE NELSON, JJ.

In an action pursuant to Highway Law § 205 for a declaratory judgment, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Brands, J.), dated May 19, 2014, which denied its motion for summary judgment, in effect, declaring that a certain segment of Tyrell Road is not an abandoned highway and granted the defendants' cross motion for summary judgment, in effect, declaring that the subject segment of Tyrell Road is an abandoned highway.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the defendants' cross motion for summary judgment, in effect, declaring that the subject segment of Tyrell Road is an abandoned highway, and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, without costs or disbursements.

Tyrell Road is 2.65 miles long and located in the Town of Pleasant Valley, Dutchess County. This appeal concerns the alleged municipal abandonment of a 1.17–mile center segment (hereinafter the center segment) of Tyrell Road. In April 2008, the Town Board of the Town of Pleasant Valley (hereinafter the Town Board) adopted a resolution certifying that the center segment had been abandoned under Highway Law § 205(1) based upon its nonuse and authorizing the Highway Superintendent to file a certificate of abandonment with the Town Clerk. In April 2009, the plaintiff filed a petition pursuant to CPLR article 78 seeking a judgment aning the resolution and certificate, and directing the Town to maintain the entire road and remove any signs suggesting that the road was closed. On a prior appeal, this Court converted the first five causes of action of the petition into an action pursuant to Highway Law § 205 for a declaratory judgment, and remitted the matter to the Supreme Court, Dutchess County, for further proceedings on the merits of those causes of action (see Matter of Dandomar Co., LLC v. Town of Pleasant Val. Town Bd., 86 A.D.3d 83, 924 N.Y.S.2d 499 ).

After the completion of discovery, the plaintiff moved for summary judgment, in effect, declaring that the center segment is not an abandoned highway under Highway Law § 205. The defendants opposed the plaintiff's motion and cross-moved for summary judgment, in effect, declaring that the center segment is an abandoned highway. The Supreme Court denied the plaintiff's motion and granted the defendants' cross motion on the ground that the defendants made an unrebutted prima facie showing that the center segment had not been used as a public highway within the meaning of Highway Law § 205 for six consecutive years. The plaintiff appeals.

Once a highway exists, it is presumed to continue until the contrary is demonstrated (see City of Cohoes v. Delaware & Hudson Canal Co., 134 N.Y. 397, 407, 31 N.E. 887 ; Ciarelli v. Lynch, 69 A.D.3d 1008, 1010, 892 N.Y.S.2d 655 ; Matter of Smigel v. Town of Rensselaerville, 283 A.D.2d 863, 864, 725 N.Y.S.2d 138 ; Hewitt v. Town of Scipio, 32 A.D.2d 734, 734, 301 N.Y.S.2d 1021, affd. 26 N.Y.2d 934, 310 N.Y.S.2d 325, 258 N.E.2d 725 ). “It will be deemed abandoned, however, if it is not traveled or used as a public highway for six years” (Curtis v. Town of Galway, 50 A.D.3d 1370, 1371, 858 N.Y.S.2d 394 ; see Highway Law § 205 [1] ). To show use as a highway, there must be evidence that travel proceeds, in forms reasonably normal, along the lines of an existing street (see Town of Leray v. New York Cent. R.R. Co., 226 N.Y. 109, 113, 123 N.E. 145 ; Matter of Smigel v. Town of Rensselaerville, 283 A.D.2d at 865, 725 N.Y.S.2d 138 ; Matter of Wills v. Town of Orleans, 236 A.D.2d 889, 890, 653 N.Y.S.2d 997 ; Coleman v. Village of Head of Harbor, 163 A.D.2d 456, 458, 558 N.Y.S.2d 594 ). Automobile use is not determinative in assessing whether a road has been abandoned (see Town of Leray v. New York Cent. R.R. Co., 226 N.Y. at 113, 123 N.E. 145 ; Ciarelli v. Lynch, 69 A.D.3d at 1010, 892 N.Y.S.2d 655 ). Indeed, evidence of frequent recreational activity may be sufficient to preclude a finding of abandonment (see e.g. Matter of Smigel v. Town of Rensselaerville, 283 A.D.2d at 865, 725 N.Y.S.2d 138 ).

Here, the plaintiff made a prima facie showing of entitlement to judgment as a matter of law. It presented evidence that since at least 1983, the center segment has been recognized as a Town road, that since the 1990s it has been included in the inventory of the Town's local roads reported to the State, and that it was regularly used by local residents for walking, biking, horseback...