Volunteer Fire Association of Tappan, Inc. v. County of Rockland

• Decision Date: 03 March 2009
• Docket Number: 2008-03049.
• Citation: 2009 NY Slip Op 0163,60 A.D.3d 666,883 N.Y.S.2d 706
• Parties: VOLUNTEER FIRE ASSOCIATION OF TAPPAN, INC., Appellant, v. COUNTY OF ROCKLAND et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

60 A.D.3d 666

883 N.Y.S.2d 706

2009 NY Slip Op 0163

VOLUNTEER FIRE ASSOCIATION OF TAPPAN, INC., Appellant, v. COUNTY OF ROCKLAND et al., Respondents, et al., Defendant.

2008-03049.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided March 3, 2009.

In a hybrid action, inter alia, for injunctive relief and to recover damages for trespass, and proceeding, in effect, pursuant to CPLR article 78 to review an undated determination of the County of Rockland, the County of Rockland Highway Department, and Andrew Connors, in effect, approving the modification of a certain road reconstruction project consisting of, among other things, the installation of a raised curb along the real property of the plaintiff/petitioner at 123 Washington Street in the Town of Orangetown, the plaintiff/petitioner appeals from an order of the Supreme Court, Rockland County (Berliner, J.), dated April 1, 2008, which denied its motion in the action, in effect, for a preliminary injunction enjoining the defendants/respondents from performing any work of any type on the subject road reconstruction project along its property pendente lite and compelling them to remove the raised curb already installed there. By decision and order on motion dated April 30, 2008, this Court granted the motion of the plaintiff/petitioner for a preliminary injunction enjoining the defendants/respondents from performing any work of any type on the subject road reconstruction project pending hearing and determination of the appeal.

Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, the motion of the plaintiff/petitioner in the action, in effect, for a preliminary injunction enjoining the defendants/respondents from performing any work of any type on the subject road reconstruction project along its property at 123 Washington Street in the Town of Orangetown pendente lite, and compelling them to remove the raised curb already installed there is granted, on the condition that the plaintiff/petitioner post an undertaking pursuant to CPLR 6312 (b), in an amount to be fixed by the Supreme Court, Rockland County, and the matter is remitted to the Supreme Court, Rockland County, for further proceedings consistent herewith, including the fixing of the amount of the undertaking.

In or about May 2000, the County of Rockland undertook a project to rebuild county roads by reconstructing certain pavement, curbs, and sidewalks. The work was performed by contractor Morano Brothers Corp. In November 2007, after the project had commenced, Andrew Connors, the Deputy Superintendent of the County of Rockland Highway Department (hereinafter the Highway Department), determined to implement a field change to the project involving the installation of a raised curb on approximately 57 feet of roadway fronting a firehouse owned by the plaintiff/petitioner (hereinafter the plaintiff) at 123 Washington Street in the Town of Orangetown. In response, the plaintiff commenced the instant hybrid action and CPLR article 78 proceeding contending, inter alia, that the raised curb constituted a trespass upon its property, and...