Petti v. Town of Lexington

• Decision Date: 16 February 2012
• Citation: 92 A.D.3d 1111,2012 N.Y. Slip Op. 01166,939 N.Y.S.2d 144
• Parties: Carolee PETTI, as Executor of the Estate of Alphonse DePaolo, Deceased, Appellant, v. TOWN OF LEXINGTON et al., Respondents. (Action No. 1.)Carolee Petti, as Executor of the Estate of Alphonse DePaolo, Deceased, Appellant, v. Town of Lexington et al., Respondents. (Action No. 2.)
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01166
92 A.D.3d 1111
939 N.Y.S.2d 144

Carolee PETTI, as Executor of the Estate of Alphonse DePaolo, Deceased, Appellant,
v.
TOWN OF LEXINGTON et al., Respondents. (Action No. 1.)Carolee Petti, as Executor of the Estate of Alphonse DePaolo, Deceased, Appellant,
v.
Town of Lexington et al., Respondents. (Action No. 2.)

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

Feb. 16, 2012.

[939 N.Y.S.2d 145]

Oxman, Tulis, Kirkpatrick, Whyatt & Geiger, L.L.P., White Plains (Lois N. Rosen of counsel), for appellant.

Tal G. Rappleyea, Valatie, for Town of Lexington and others, respondents in action No. 1.

Napierski, Vandenburgh, Napierski & O'Connor, L.L.P., Albany (Mark J. Dolan of counsel), for Town of Lexington, respondent in action No. 2.Gambeski & Frum, Elmsford (H. Malcolm Stewart of counsel), for Town of Shandaken, respondent in action No. 2.Law Office of Steven Habiague, Poughquag (Steven Habiague of counsel), for Peter Vinci, respondent.

Before: LAHTINEN, J.P., SPAIN, STEIN, GARRY and EGAN JR., JJ.

SPAIN, J.

[92 A.D.3d 1111] Appeal from an order of the Supreme Court (Work, J.), entered September 13, 2010 in Ulster County, which, among other things, granted defendants' motions for summary judgment dismissing the complaints.

The dispute at the heart of this appeal is whether the public has a right to access a quarter-mile section of a single-lane, gravel roadway shaped like a hairpin (hereinafter the hairpin) located on property held by plaintiff as the executor of the estate of her father, Alphonse DePaolo (hereinafter the DePaolo parcel). A portion of the hairpin is located in the Town of Lexington, Greene County, and a portion of it is located in the Town of Shandaken, Ulster County. The hairpin is part of, and near the center of, an approximately four-mile roadway beginning at its western most point at Route 28 in Delaware County, and ending at its eastern most point at Route 42 in Shandaken (hereinafter the Road).¹ At the request of a property owner of

[939 N.Y.S.2d 146]

lands lying to the east of the DePaolo parcel, whose access to and from Route 42 was at times in winter months impeded by the steepness of portions of the eastern half of the Road, the hairpin was improved by defendant Town of Shandaken in 2000, resulting in an increased flow of traffic through the hairpin to access Route 28. Since that time, crews from both the Town of Shandaken and defendant Town of Lexington have regularly plowed and maintained the hairpin for use by school buses and the general public. In 2008, plaintiff commenced these actions seeking to quiet title of the hairpin pursuant to RPAPL article 15 (action No. 1) and seeking damages for continuing trespass (action No. 2).

By a series of motions and cross motions, all parties sought summary judgment and Peter Vinci, a neighboring landowner [92 A.D.3d 1112] in Shandaken, moved to intervene in the actions in support of defendants' motions. In a thorough written decision, Supreme Court granted Vinci's motion to intervene and, finding that the hairpin had become a public highway by use, granted defendants' motions for summary judgment dismissing the complaints, and denied plaintiff's motion for summary judgment to defendants. On plaintiff's appeal, we now reverse the grant of summary judgment to defendants. Although defendants established a prima facie case that the hairpin became a highway by use between 1998 and 2008, plaintiff successfully raised material questions of fact precluding summary judgment. Further, there are necessary parties that must be joined.

“All lands which shall have been used by the public as a highway for the period of ten years or more, shall be a highway” (Highway Law § 189). A “highway by use” is established by showing that, for at least the statutory period, two conditions have been met: “the road at issue was used by the public and the municipality exercised dominion and control over the road” ( Whitton v. Thomas, 25 A.D.3d 996, 997, 807 N.Y.S.2d 454 [2006], lv. dismissed 7 N.Y.3d 783, 820 N.Y.S.2d 545, 853 N.E.2d 1113 [2006]; see Egan v. Halverson, 271 A.D.2d 844, 845, 706 N.Y.S.2d 494 [2000]; Town of Dresden v. Voutyras, 244 A.D.2d 779, 780, 666 N.Y.S.2d 242 [1997] ). “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 1287, 1289 n. 2, 848 N.Y.S.2d 770 [2007] [citation omitted] ).

In support of their motions for summary judgment, defendants submitted deposition testimony and documentary evidence to demonstrate that the Road, including the hairpin, has been used by the public and maintained by both Towns for at least the 10–year period prior to the commencement of these actions in 2008. As no actual dispute exists that since the improvements made in 2000, the hairpin has been used and maintained as a public highway, the issue devolves to whether the hairpin was used by and maintained for the public in 1998 and 1999. Walter Crump, who owned property lying to the east of the DePaolo property from 1964 through 2006, testified that although he only used the property for vacations, for decades his...