Long Pond Ass'n Inc. v. Town of Carmel

• Decision Date: 02 August 2011
• Citation: 927 N.Y.S.2d 679,87 A.D.3d 525,2011 N.Y. Slip Op. 06119
• Parties: LONG POND ASSOCIATION, INC., appellant,v.TOWN OF CARMEL, et al., respondents.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 525
927 N.Y.S.2d 679
2011 N.Y. Slip Op. 06119

LONG POND ASSOCIATION, INC., appellant,
v.
TOWN OF CARMEL, et al., respondents.

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

Aug. 2, 2011.

[927 N.Y.S.2d 679]

Carl F. Lodes, Carmel, N.Y., for appellant.Sokoloff Stern LLP, Westbury, N.Y. (Adam I. Kleinberg and Mark A. Radi of counsel), for respondent Town of Carmel.MARK C. DILLON, J.P., RANDALL T. ENG, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

[87 A.D.3d 525] In an action, inter alia, for a judgment declaring that certain roads are town highways by use pursuant to Highway Law § 189, the plaintiff appeals from an order of the Supreme Court, Putnam County (Nicolai, J.), dated April 13, 2010, which granted that branch of the defendants' motion which was for summary judgment, in effect, declaring, among other things, that the subject roads are not town highways by use pursuant to Highway Law § 189.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Putnam County, for the entry of a judgment making the appropriate declaration.

The defendant Town of Carmel established its prima facie entitlement to judgment as a matter of law on the ground that the subject roads are not town highways by use. Highway Law § 189 provides that “[a]ll lands which shall have been used by the public as a highway for the period of ten years or more, shall be a highway, with the same force and effect as if it had been duly laid out and recorded as a highway, and the town superintendent shall open all such highways to the width of at least three rods.” In order for a private road to be deemed a public highway by use, it must be “show[n] that, for a

[927 N.Y.S.2d 680]

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” ( State of New York v. Town of Horicon, 46 A.D.3d 1287, 1289 n. 2, 848 N.Y.S.2d 770 [internal quotation marks omitted]; see Pinsly v. Town of Huntington, 81 A.D.3d 910, 911, 917 N.Y.S.2d 276; Whitton v. Thomas, 25 A.D.3d 996, 997, 807 N.Y.S.2d 454; Egan v. Halverson, 271 A.D.2d 844, 845, 706 N.Y.S.2d 494; Salvador v. New York State Dept. of Transp., 234 A.D.2d 741, 742, 651 N.Y.S.2d 227). “Such a showing ... requires more than intermittent use by the public and more than occasional road work by the municipality” ( State of New York v. Town of Horicon, 46 A.D.3d at 1289 n. 2, 848 N.Y.S.2d 770).

Here, the evidence...