Federman v. Town of Lorraine
| Docket Number | 837,CA 22-00575 |
| Decision Date | 03 February 2023 |
| Citation | 213 A.D.3d 1220,184 N.Y.S.3d 254 |
| Parties | Glenn FEDERMAN, Plaintiff-Appellant, v. TOWN OF LORRAINE, Highway Superintendent Joseph Wasilewski, Deputy Highway Superintendent Harold Downey, Town Supervisor Vince Moore and Town Council Members David Johnson, Joe Hodges, Lester Hobbs, Gordon Hutton, Devon M. Filson, Tim Tryon, Michael Dobbins and Damian M. Smith, Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
LAW OFFICE OF DAVID TENNANT PLLC, ROCHESTER (DAVID H. TENNANT OF COUNSEL), FOR PLAINTIFF-APPELLANT.
FITZGERALD MORRIS BAKER FIRTH, P.C., GLENS FALLS (MICHAEL CROWE OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion and reinstating the third cause of action in the amended complaint, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action against defendants, Town of Lorraine and certain of its officials, seeking, inter alia, damages for an unlawful taking of property arising from maintenance performed on Miller Road, which leads to plaintiff's home. Before the motions at issue were filed, Supreme Court granted defendants’ motion to dismiss the amended complaint with the exception of that cause of action. No appeal was taken from that order. Plaintiff now appeals from an order granting defendants’ motion for summary judgment dismissing the amended complaint, and denying his cross motion for summary judgment on the amended complaint, which at that time consisted of only the eminent domain cause of action. We agree with plaintiff that the court erred in granting the motion, therefore we modify the order accordingly.
As the parties seeking summary judgment dismissing the eminent domain cause of action, defendants were required to establish, under these circumstances, that no unlawful taking occurred because Miller Road was a public highway by use pursuant to Highway Law § 189 and that all work that they performed was maintenance that did not have the effect of improperly widening the road. We agree with plaintiff that defendants failed to submit evidence establishing that Miller Road is a public highway within the meaning of section 189. "In order for a private road to be deemed a public highway by use, it must be show[n] that, for a period of at least 10 years, the road at issue was used by the public and the municipality exercised dominion and control over the road ... Such a showing ... requires more than intermittent use by the public and more than occasional road work by the municipality" ( Matter of Woodson v. Town of Riverhead , 203 A.D.3d 935, 937, 165 N.Y.S.3d 108 [2d Dept. 2022] [internal quotation marks omitted]; see Brandon v. Town of Southeast , 150 A.D.3d 659, 659-660, 54 N.Y.S.3d 42 [2d Dept. 2017] ; see generally Town of Addison v. Meeks , 233 A.D.2d 843, 843-844, 649 N.Y.S.2d 274 [4th Dept. 1996], lv denied 89 N.Y.2d 808, 655 N.Y.S.2d 888, 678 N.E.2d 501 [1997] ).
Here, in support of their motion, defendants submitted plaintiff's testimony at a General Municipal Law § 50-h hearing, at which plaintiff repeatedly testified that the Town had, until shortly before the commencement of this action, refused to maintain the part of the road at issue, and the affidavit of defendant Highway Superintendent Joseph Wasilewski, who had personal knowledge of the facts concerning only the two years that preceded the filing of the motion. Consequently, we conclude that defendants failed to "make a prima facie showing of entitlement to judgment as a matter of law [by] tendering sufficient evidence to eliminate any material issues of fact from the case" ( Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ), and thus "the burden never shifted to [plaintiff], and denial of the motion was required ‘regardless of the sufficiency of the opposing papers’ " ( Scruton v. Acro-Fab Ltd. , 144 A.D.3d 1502, 1503, 40 N.Y.S.3d 864 [4th Dept. 2016], quoting Alvarez v....
To continue reading
Request your trial