Salvador v. New York State Dept. of Transp.

• Decision Date: 12 December 1996
• Citation: 234 A.D.2d 741,651 N.Y.S.2d 227
• Parties: John SALVADOR Jr. et al., Appellants, v. NEW YORK STATE DEPARTMENT OF TRANSPORTATION et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 227

651 N.Y.S.2d 227

234 A.D.2d 741

John SALVADOR Jr. et al., Appellants, v. NEW YORK STATE DEPARTMENT OF TRANSPORTATION et al., Respondents.

Supreme Court, Appellate Division Third Department.

Dec. 12, 1996.

John Salvador, Jr., Lake George, in pro. per.

Dennis C. Vacco, Attorney-General (Dennis Hurley, of counsel), Albany, for New York State Department of Transportation, respondent.

FitzGerald, Morris, Baker and Firth (Scott Rotman, of counsel), Glens Falls, for Town Board of the Town of Queensbury, respondent.

Before CARDONA, P.J., and WHITE, PETERS, SPAIN and CARPINELLO, JJ.

CARPINELLO, Justice.

Appeals (1) from an order of the Supreme Court (Teresi, J.), entered December 7, 1994 in Albany County, which, inter alia, granted a motion by defendants Department of Transportation and Commissioner of Transportation to dismiss the complaint against them for failure to state a cause of action, (2) from an order of said court (Dier, J.), entered June 30, 1995 in Warren County, which, inter alia partially granted the remaining defendants' cross motion for summary judgment dismissing the complaint, and (3) from an order of said court (Viscardi, J.), entered January 22, 1996 in Warren County, which denied plaintiffs' motion for renewal.

At issue in this case is the status of a 0.14-mile stretch of roadway known as Dunham's Bay Road, which is located along Lake George in the Town of Queensbury, Warren County. Plaintiffs are the proprietors of Dunham's Bay Lodge. Dunham's Bay Road intersects State Route 9L at two places and is used by plaintiffs and their guests and visitors, the customers and employees of Dunham's Bay Boat Company, and a nearby property owner. Plaintiffs are apparently engaged in a feud with Dunham's Bay Boat Company, which was recently granted a permit to operate a marina, and they claim on this appeal that Dunham's Bay Road is a private road that they own.

Supreme Court, inter alia, granted a motion to dismiss filed by defendants Department of Transportation and the Commissioner of Transportation (hereinafter collectively referred to as DOT), granted summary judgment dismissing the complaint against defendants Town Board of the Town of Queensbury, Town Supervisor, Town Highway Department and Town Highway Superintendent (hereinafter collectively referred to as the Town defendants) based upon its finding that Dunham's Bay Road was a Town road, and denied plaintiffs' motion to renew. Plaintiffs appeal.

We turn first to plaintiffs' argument that the road is not a Town road, as we consider this issue to be dispositive. The record in this case reveals that Dunham's Bay Road was originally part of the Fort George-Brayton County Highway. Dunham's Bay Road was not incorporated into Route 9L, which was constructed in the 1930s. Plaintiffs claim that the County had originally exercised jurisdiction over this stretch of roadway but that the State had assumed jurisdiction when it constructed Route 9L and that the State never returned jurisdiction to the County and the County never ceded jurisdiction to the Town. However, even if true, this issue is irrelevant if it can be shown that Dunham's Bay Road became a Town highway 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". The courts have consistently held that this statute requires that two separate conditions be satisfied: first, there must be a showing that the public uses the roadway and, second, there must be a showing that the municipality has kept the road in repair for the requisite period (see, La Salle Co. v. Town of Hillsdale, 199 A.D.2d 685, 686, 605 N.Y.S.2d 154; American Nassau Bldg. Sys. v. Press, 143 A.D.2d 789, 791, 533 N.Y.S.2d 316, lv. denied, 73 N.Y.2d 705, 539 N.Y.S.2d 298, 536 N.E.2d 627; Impastato v. Village of Catskill, 55 A.D.2d 714, 715, 389 N.Y.S.2d 152, affd. 43 N.Y.2d 888, 403 N.Y.S.2d 497, 374 N.E.2d 394; Nogard v. Strand, 38 A.D.2d 871, 329 N.Y.S.2d 25).

In this case, there is clear evidence in the record that Dunham's Bay Boat Company and a nearby landowner use Dunham's Bay Road, which provides access to Route 9L. There is also evidence in the record that the Town, which first included the road on its registry of roads in 1963, blacktopped the road in the 1960s and has kept it paved and in good repair since then. A photograph of the road indicates that a stop sign has been placed where the road intersects Route 9L. The Town Highway Superintendent has stated that he recalls working on the road as early as the 1950s. Consequently, we agree with Supreme Court that the Town has established that Dunham's Bay Road became a Town highway by use pursuant to Highway Law § 189. Further, there is no evidence in the record that would substantiate plaintiffs' conclusory claim that the Town has abandoned Dunham's Bay Road (see, McGovern v. Tatten, 213 A.D.2d 778, 780, 623 N.Y.S.2d 370). To the extent that plaintiffs challenge the Town's inclusion of Dunham's...