Fernandez v. Town of Benson

• Decision Date: 29 July 2021
• Docket Number: 531631
• Citation: 151 N.Y.S.3d 550,196 A.D.3d 1019
• Parties: In the Matter of Frank FERNANDEZ et al., Respondents, v. TOWN OF BENSON et al., Appellants.
• Court: New York Supreme Court — Appellate Division

196 A.D.3d 1019

151 N.Y.S.3d 550

In the Matter of Frank FERNANDEZ et al., Respondents,

v.TOWN OF BENSON et al., Appellants.

531631

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

Calendar Date: June 2, 2021

Decided and Entered: July 29, 2021

FitzGerald Morris Baker Firth PC, Glens Falls (John D. Aspland Jr. of counsel), for appellants.

Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Justin W. Gray of counsel), for respondents.

Before: Lynch, J.P., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeal from an order of the Supreme Court (Slezak, J.), entered June 12, 2020 in Hamilton County, which, among other things, in a combined proceeding pursuant to CPLR article 78, plenary action and action for declaratory judgment, denied respondents' motion for summary judgment dismissing the petition/complaint and partially granted petitioners' motion for summary judgment.

In 1996, petitioner Frank Fernandez (hereinafter Fernandez) purchased real property located at the intersection of County Route 6 and Van Slyke Road in the Town of Benson, Hamilton County.¹ Shortly after he purchased the property, he was informed by the Town's then highway superintendent, Arthur T. Horton, that Van Slyke Road had been abandoned by respondent Town of Benson and that the Town did not repair or maintain the road. Petitioners' driveway connects to Van Slyke Road and, as such, the road is and has been used by petitioners' guests, delivery service companies, postal carriers, and fuel and gas delivery providers. Petitioners have repaired and maintained the road since 1996. In 2016, petitioners were researching the property on the Internet and came across a depiction of "Van Slyke Road." Consequently, petitioners searched the County Clerk's office and did not find any records evidencing that Van Slyke Road was abandoned. Petitioners then requested that respondent George Blowers, the Town's current highway superintendent, and the Town take over maintenance of the road, but petitioners' requests were denied. Shortly thereafter, in August 2018, Blowers submitted a written certificate of abandonment to the Town Board, pursuant to Highway Law § 205, certifying that the road had not been traveled on or used as a highway for more than six years, and the Town Board consented to same.

Petitioners commenced this hybrid action/proceeding against respondents seeking, among other things, a declaratory judgment that Van Slyke Road is a Town highway, that the Town's purported abandonment of the road by certificate is null and void and that the road is not otherwise abandoned, and to compel the Town to repair and maintain the road (hereinafter the abandonment claim). Petitioners also seek monetary damages related to the Town's failure to repair and maintain the road, including reimbursement for expenses incurred by petitioners to maintain the road since 1996. Petitioners further seek compensatory and punitive damages, pursuant to 42 USC § 1983, based upon their claim that respondents violated their equal protection rights by treating them disparately compared to others similarly situated by failing to repair and maintain Van Slyke Road (hereinafter the equal protection claim).²

Respondents answered the petition/complaint, asserting various defenses, including the statute of limitations. Upon completion of discovery, respondents filed a motion pursuant to CPLR 3211³ and 3212, supported by Horton's affidavit, seeking dismissal of the abandonment claim and the equal protection claim as time-barred, and also seeking summary judgment dismissing the abandonment claim. Shortly thereafter, petitioners moved for, among other things, summary judgment as to their request for mandamus and for a declaratory judgment on the abandonment claim. Supreme Court, among other things, denied respondents' motion in its entirety, granted petitioners' motion for summary judgment as it related to the abandonment claim and declared that the road was not abandoned, thus compelling the Town to repair and maintain it. Respondents appeal.

Respondents contend that Supreme Court erred in failing to dismiss the equal protection claim as time-barred. The statute of limitations for an equal protection claim, pursuant to 42 USC § 1983, is three years (see Syfert v. City of Rome, 2020 WL 4506689, *4, 2020 U.S. Dist LEXIS 66786, *8 [N.D. N.Y., Apr. 15, 2020, No. 6:19–CV–0775 (GTS/ML)] ; Brown v. State of New York, 250 A.D.2d 314, 318, 681 N.Y.S.2d 170 [1998] ). A cause of action under 42 USC § 1983 accrues when the petitioners knew or should have known of the injury that is the basis of the action (see Giovannetti v. Dormitory Auth. of State of N.Y., 115 A.D.2d 851, 853, 495 N.Y.S.2d 805 [1985], affd 69 N.Y.2d 621, 511 N.Y.S.2d 227, 503 N.E.2d 692 [1986] ; see Pearl v. City of Long Beach, 296 F.3d 76, 80 [2d Cir.2002], cert denied 538 U.S. 922, 123 S.Ct. 1574, 155 L.Ed.2d 313 [2003] ). In 2018 – after learning that Van Slyke Road was not abandoned – petitioners asked the Town and Blowers to maintain the road and they refused. Thereafter, the Town sought to abandon Van Slyke Road by certificate. As petitioners commenced this hybrid action/proceeding in December 2018, well within three years of the alleged disparate treatment that gave rise to petitioners' injury under 42 USC § 1983, Supreme Court properly found that the equal protection claim is not time-barred (see Giovannetti v. Dormitory Auth. of State of N.Y., 115 A.D.2d at 853, 495 N.Y.S.2d 805 ).

Respondents next assert that Supreme Court erred in failing to dismiss petitioners' claim under 42 USC § 1983 upon the merits, as there is no proof that other individuals were similarly situated to petitioners. Petitioners' equal protection claim is based upon selective enforcement. A selective enforcement violation "arises where first, a person (compared with others similarly situated) is selectively treated and second, such treatment is based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person" ( Bower Assoc. v. Town of Pleasant Val., 2 N.Y.3d 617, 631, 781 N.Y.S.2d 240, 814 N.E.2d 410 [2004] [emphasis omitted]). The petitioners "must identify comparators that a reasonably prudent person would think were roughly equivalent to the [petitioners], though the [petitioners do] not need to show an exact correlation between them and that similarly situated person" ( Garuc v. Town of Durham, 2018 WL 834077, *11, 2018 U.S. LEXIS 21480, *30 [N.D. N.Y., Feb. 9, 2018, No. 1:17–CV–0130 (GTS/CFH)] [internal quotation marks and citations omitted]).

Petitioners assert that there are many other roads in the Town that have no outlet – with no or few residences situated on them – that are maintained by the Town. Specifically, petitioners point to Snell Road and Hunt Road as being roughly equivalent to Van Slyke Road. Like Van Slyke Road, these roads are dead ends, are comprised of compressed dirt and gravel, and have only one residence. Unlike Van Slyke Road, the Town maintains these roads. Petitioners also allege that Tannery Road, where the Town Supervisor's residence is located, is also an unpaved dead end road, and a portion of the road is not even located within the Town, and yet the Town maintains it. Petitioners further point to the manner in which the Town purported to formally abandon Van Slyke Road via written certificate, as proof of personal animus, and malicious and improperly motivated conduct. While the concurrence/dissent refers to this filing as a merely "ministerial act," the record confirms that this was done shortly after petitioners approached the Town and demanded that it maintain the road. More significantly, this is the first and only time in the Town's history that such a certificate has been filed. As such, we are unpersuaded that, at this stage of the litigation, the filing of the certificate should be accorded the minimal significance assigned to it by the concurrence/dissent. On the contrary, viewing these allegations liberally, petitioners have stated an equal protection claim under 42 USC § 1983, and we therefore find that Supreme Court properly denied respondents' motion for summary judgment dismissing said claim (see Kreamer v. Town of Oxford, 96 A.D.3d 1130, 1133, 946 N.Y.S.2d 284 [2012] ; Matter of Niagara Mohawk Power Corp. v. State of New York, 300 A.D.2d 949, 955, 753 N.Y.S.2d 541 [2002] ).

Respondents also contend that Supreme Court erred in determining that they failed to establish their prima facie entitlement to summary judgment on the abandonment claim. Respondents further contend that Supreme Court failed to properly weigh the credibility of Horton's affidavit in rendering its determination. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the proponent of the motion satisfies its prima facie burden, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" ( Fontaine v. City of Amsterdam, 172 A.D.3d 1602, 1603, 100 N.Y.S.3d 394 [2019] [internal quotation marks, brackets and citations omitted]; see Xiang Fu He v. Troon Mgt., Inc., 34 N.Y.3d 167, 175, 114 N.Y.S.3d 14, 137 N.E.3d 469 [2019] ).

"[I]t has long been settled that once a road becomes a public highway, it is presumed to continue until it is shown to exist no longer. 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 [2008] [internal quotation marks and citations omitted]; see Highway Law § 205[1] ). In determining whether a road has been abandoned "through nonuse,...