In the Matter of Ronald Marchand v. N.Y. State Dep't of Envtl. Conservation

• Decision Date: 03 May 2011
• Citation: 84 A.D.3d 808,922 N.Y.S.2d 493,2011 N.Y. Slip Op. 03854
• Parties: In the Matter of Ronald MARCHAND, Jr., et al., petitioners/plaintiffs-appellants,v.NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, respondent/defendant,Incorporated Village of Bayville, respondent/defendant-respondent.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 808

922 N.Y.S.2d 493

2011 N.Y. Slip Op. 03854

In the Matter of Ronald MARCHAND, Jr., et al., petitioners/plaintiffs-appellants,

v.NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, respondent/defendant,Incorporated Village of Bayville, respondent/defendant-respondent.

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

May 3, 2011.

Albanese & Albanese, LLP, Garden City, N.Y. (Bruce W. Migatz of counsel), for petitioners/plaintiffs-appellants.

Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great Neck, N.Y. (James A. Bradley of counsel), for respondent/defendant-respondent.A. GAIL PRUDENTI, P.J., MARK C. DILLON, RUTH C. BALKIN, and SANDRA L. SGROI, JJ.

In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Environmental Conservation dated July 24, 2006, and action pursuant to RPAPL article 15, inter alia, to compel the determination of a claim to real property, the petitioners/plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Lally, J.), entered January 20, 2010, which, upon an order of the same court (LaMarca, J.), dated September 17, 2009, among other things, granting that branch of the cross motion of the respondent/defendant Incorporated Village of Bayville which was for summary judgment declaring that the subject property became a village street by prescription under Village Law § 6–626 and, after a nonjury trial on the issue of whether the street ceased to be a village street by prescription because it had been abandoned by nonuse, was in favor of the respondent/defendant Incorporated Village of Bayville and against them, declaring that the property continues to be a village street by prescription and a public right-of-way.

ORDERED that the judgment is affirmed, with costs.

The Supreme Court properly determined that the roadway crossing the petitioners/plaintiffs' property had become a village street by prescription. Village Law § 6–626 provides, “[a]ll lands within the village which have been used by the public as a street for ten years or more continuously, shall be a street with the same force and effect as if it had been duly laid out and recorded as such.” However, “use or potential use by the public of a private road will not, by virtue of that fact alone, transform a private road into a public street” ( American Nassau Bldg. Sys. v. Press, 143 A.D.2d 789, 790–791, 533 N.Y.S.2d 316, citing Impastato v. Village of Catskill, 55 A.D.2d 714, 389 N.Y.S.2d 152, affd. 43 N.Y.2d 888, 403 N.Y.S.2d 497, 374 N.E.2d 394). “In addition to a finding of use by the public, ‘there must also be a finding that the road has been kept in repair or taken in charge, and thus adopted by the public authorities during the period in question [i.e., 10 years or more]’ ” ( American Nassau Bldg. Sys. v. Press, 143 A.D.2d at 791, 533 N.Y.S.2d 316, quoting Jakobson v. Chestnut Hill Props., 106 Misc.2d 918, 926–927, 436 N.Y.S.2d 806; see Pinsly v. Town of Huntington, 81 A.D.3d 910, 917 N.Y.S.2d 276).

Here, the Incorporated Village of Bayville established its prima facie entitlement to judgment as a matter of law ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642) by submitting affidavits of Village officials and residents, who averred that the subject roadway had been used by the public on a continuous basis during the statutory period. In addition, the Village submitted affidavits of various officials establishing that it performed certain municipal services, including snow plowing and sanding, garbage removal, maintenance of fire hydrants and water mains, and the removal of obstructions and surplus water. Contrary to the petitioners/plaintiffs' contention, the provision of such services is sufficient to demonstrate that the road was adopted by the public authorities during the period in question ( see American Nassau Bldg. Sys. v. Press, 143 A.D.2d 789, 533 N.Y.S.2d 316). In opposition, the petitioners/plaintif...