McGovern v. Tatten

• Decision Date: 02 March 1995
• Citation: 623 N.Y.S.2d 370,213 A.D.2d 778
• Parties: Thomas J. McGOVERN et al., Appellants, v. Francis M. TATTEN et al., Respondents. In the Matter of Thomas J. McGOVERN et al., Appellants, v. TOWN OF FULTON et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 370

623 N.Y.S.2d 370

213 A.D.2d 778

Thomas J. McGOVERN et al., Appellants, v. Francis M. TATTEN et al., Respondents.

In the Matter of Thomas J. McGOVERN et al., Appellants, v. TOWN OF FULTON et al., Respondents.

Supreme Court, Appellate Division Third Department.

March 2, 1995.

Thomas J. McGovern and another, appellants in pro. per.

Francis M. Tatten and another, respondents in pro. per.

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and SPAIN, JJ.

MIKOLL, Justice Presiding.

Appeals (1) from an order of the Supreme Court (Hughes, J.), entered July 20, 1993 in Schoharie County, which, inter alia, granted defendants' cross motion for summary judgment dismissing the complaint, and (2) from an order of said court, entered February 4, 1994 in Schoharie County, which denied plaintiffs' motion for renewal.

Appeals (1) from a judgment of the Supreme Court (Hughes, J.), entered December 16, 1993 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78 to, inter alia, determine the abandonment of a section of Old Route 30 in the Town of Fulton and to permanently enjoin the Town from taking any action with respect to the roadway, and (2) from an order of said court, entered March 4, 1994 in Albany County, which denied petitioners' motion for reargument.

At the heart of the two cases consolidated on appeal is the status of a portion of Old Route 30 in the Town of Fulton, Schoharie County, which crosses property owned by Thomas J. McGovern and Tiia McGovern and provides egress onto the adjoining property owned by Francis M. Tatten and Barbara Tatten. The McGoverns purchased their property on March 27, 1984 from Herman Buschhardt and Patricia Buschhardt. The Tattens purchased their adjoining property south of the McGoverns' property on December 23, 1986 from John Leith.

The McGoverns allege in their action against the Tattens that the portion of the road in dispute has been abandoned by the Town and that the Tattens' use of the road is a trespass on their property. The Tattens did not respond to service of process with a formal answer, but replied by letter to the McGoverns. In turn, the McGoverns moved for a default judgment. The Tattens opposed the motion and cross-moved for summary judgment contending, inter alia, that the McGoverns failed to prove that the portion of the road in dispute has been abandoned and, thus, it continues as a public road for which an action in trespass may not be maintained. Supreme Court found that the disputed portion of the road had not been abandoned by the Town and remains a public highway. Supreme Court denied the McGoverns' motion for renewal. The McGoverns appeal both orders.

Subsequently, the McGoverns commenced a CPLR article 78 proceeding against the Town, the Town Board and the Tattens seeking, inter alia, to annul the action of the Town Board in enacting a resolution to resume maintaining the portion of the road in dispute. The Town and the Tattens opposed the petition. Supreme Court held that the issue of abandonment by the Town was litigated in the prior action brought by the McGoverns against the Tattens and could not be relitigated in this proceeding. The court further held that the Town Board's decision to maintain one of its roads after the issuance of Supreme Court's order finding that the road had not been abandoned was not arbitrary and capricious conduct. A judgment was entered dismissing the McGoverns' petition and the McGoverns' motion for reargument was denied. These appeals by the McGoverns ensued.

The McGoverns, appearing pro se on these appeals, argue, inter alia, that Supreme Court erred in denying their motion to renew consideration of the Tattens' cross motion for summary judgment in the action based on, inter alia, new evidence consisting of the Town Board's violation of Town Law § 62(2) by holding a special meeting on May 11, 1993 and its violation of Public Officers Law § 105 in holding two executive sessions. We disagree. The McGoverns' motion to renew was correctly denied by Supreme Court. The McGoverns failed to show new facts to support the motion and a justifiable excuse for not placing those facts before Supreme Court, which were known when the motion was pending (see, Lansing Research Corp. v. Sybron Corp., 142 A.D.2d 816, 819, 530 N.Y.S.2d 698; see also, CPLR 2221).

The McGoverns contend that Supreme Court erroneously concluded that the disputed road across their property has not been abandoned because of the court's reliance on the invalid meeting of the Town Board and, therefore, summary judgment was improperly granted to the Tattens. Supreme Court, however, did not rely on the resolution adopted at the special meeting in arriving at its decision granting summary judgment in the action. Supreme Court clearly indicated that its decision granting summary judgment in the action was based on the McGoverns' failure to prove that the road crossing their property was abandoned based on the language of a 1937 abandonment resolution, which the McGoverns originally relied upon heavily to prove abandonment. The language of the 1937 abandonment resolution clearly states that the abandonment of the Town highway began at a point south of the property of Mary Becker's land. As Becker's land and the McGoverns' land is the same property,...