Lake Placid Village, Inc. by Village Bd. of Trustees v. Lake Placid Main Street Corp.

• Decision Date: 04 November 1982
• Citation: Lake Placid Village, Inc. by Village Bd. of Trustees v. Lake Placid Main Street Corp., 456 N.Y.S.2d 477, 90 A.D.2d 873 (N.Y. App. Div. 1982)
• Parties: LAKE PLACID VILLAGE, INC., by the VILLAGE BOARD OF TRUSTEES, Appellant, v. LAKE PLACID MAIN STREET CORPORATION, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 477

456 N.Y.S.2d 477

90 A.D.2d 873

LAKE PLACID VILLAGE, INC., by the VILLAGE BOARD OF TRUSTEES, Appellant, v. LAKE PLACID MAIN STREET CORPORATION, Respondent.

Supreme Court, Appellate Division Third Department.

Nov. 4, 1982.

Briggs, Dwyer & Smith, Lake Placid (Timothy R. Smith, Lake Placid, of counsel), for appellant.

Urfirer & Brooks, Lake Placid (Richard B. Meyer, Lake Placid, of counsel), for respondent.

Before SWEENEY, J.P., and KANE, MAIN, MIKOLL and YESAWICH, JJ.

MEMORANDUM DECISION.

Appeal (1) from an order of the Supreme Court at Special Term, entered April 29, 1981 in Essex County, which, inter alia, granted defendant's cross motion to dismiss the complaint, and (2) from the judgment entered thereon.

Plaintiff Lake Placid Village, Inc., seeks to compel defendant Lake Placid Main Street Corporation to remove a sign structure, located on defendant's premises abutting Main Street, also known as State Route 86, in the Village of Lake Placid. It is alleged that the sign structure, erected in 1956, violates the village's sign ordinance which prescribes that signs be set back at least four feet from the "travelled portion of any public street or highway or four (4) feet from the edge of a New York State right of way, if one shall exist, whichever distance is greater". The sign ordinance, enacted in 1960 with an initial set-back requirement of 10 feet, required alteration or removal of offending signs by January 1, 1964. A 1966 amendment reduced the set-back requirement to four feet. In 1980, the village requested that defendant remove the sign and when the latter neglected to do so, this suit for injunctive relief followed.

Defendant, responding to the village's motion for a preliminary injunction, cross-moved to dismiss the complaint for failure to state a cause of action and because a defense founded upon documentary evidence existed. It also urged that the village was barred from acting by laches and that the ordinance was unconstitutionally vague. In support of its cross motion, defendant furnished a surveyor's map exhibiting the sign structure to be more than four feet from the "travelled portion" of the road. To demonstrate that there was no recorded State right of way over Main Street, defendant also offered affidavits to that effect by the Essex County Clerk and the Assistant Resident Engineer of the State Department of Transportation.

A motion to dismiss, pursuant to CPLR 3211 (subd. [a], par. 7), cannot succeed unless the movant conclusively establishes that the opposing party has no cause of action (Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 389 N.Y.S.2d 314, 357 N.E.2d 970), or clearly demonstrates that "no significant dispute exists" (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17). The surveyor's map, commissioned by defendant for the purposes of this litigation, represents but one person's opinion concerning the boundaries of the "travelled portion" of Main Street. As for the affidavits indicating that no recorded State right of way exists, they too are not determinative for a roadway may become a public highway by prescription, or use, without the filing of a recorded instrument (Highway Law, § 189; Village Law,...