Ignaczak v. Ryan

• Decision Date: 14 December 2010
• Citation: 79 A.D.3d 881,912 N.Y.S.2d 658
• Parties: In the Matter of Jeffrey J. IGNACZAK, et al., respondents, v. James RYAN, Assessor of Town of Brookhaven, et al., appellants.
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 658
79 A.D.3d 881

In the Matter of Jeffrey J. IGNACZAK, et al., respondents,
v.
James RYAN, Assessor of Town of Brookhaven, et al., appellants.

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

Dec. 14, 2010.

912 N.Y.S.2d 658

Robert F. Quinlan, Town Attorney, Farmingville, N.Y. (Beth Ann Reilly of counsel), for appellants.

Joseph D. Mirabella, Mastic, N.Y., for respondents.

PETER B. SKELOS, J.P., JOSEPH COVELLO, RUTH C. BALKIN, and SANDRA L. SGROI, JJ.

79 A.D.3d 881

In a proceeding pursuant to CPLR article 78, in effect, to review a determination of James Ryan, Assessor of the Town of Brookhaven, dated October 1, 2008, denying the petitioners' request for approval of a certificate of abandonment of a designated portion of land on a subdivision map pursuant to Real Property Law § 335(3), the appeal is from a judgment of the Supreme Court, Suffolk County (Tanenbaum, J.), dated December 4, 2009, which, in effect, granted the petition, annulled the determination, and directed James Ryan, Assessor of the Town of Brookhaven, to approve the certificate of abandonment.

912 N.Y.S.2d 659

ORDERED that the judgment is affirmed, with costs.

Real Property Law § 335(3) permits the abandonment of a subdivision or portion thereof, such as a so-called "paper" street, by the owner of the land to be abandoned "without [the] consent" of other landowners in the subdivision, provided that 20 years or more have elapsed since the subdivision map was filed and "such streets or portions thereof are neither opened, nor public highways, nor used by the public, nor necessary for the use of owners, occupants or any other persons having an interest in any part of the subdivision" (

79 A.D.3d 882

Real Property Law § 335[3]; see DeMato v. Mallin, 68 A.D.3d 711, 890 N.Y.S.2d 595). "A copy of each certificate of abandonment must be filed with the assessor and/or board of assessors of each town and village wherein any portion of the property to be abandoned is situated, and the endorsement of approval by each such assessor and/or board of assessors must be endorsed on the original of each certificate presented to the county clerk for recording" (real property laW § 335[3] ).

The petitioners are neighboring landowners in a subdivision in the Town of Brookhaven. The subdivision map, which was filed in 1911, contains a "paper" street known as Allyn Street, a portion of which separates the petitioners' respective lots and dead-ends at a vacant lot. This portion of...