Opinion
19201/07.
Decided May 19, 2008.
Attorneys; Wingate, Kearney and Cullen by Richard J. Dea, Esq., Brooklyn, NY.
Corporation Counsel, by Warren Shaw, Esq., NY, NY.
Defendants The City of New York (the City) and Honorable Janette Sadik-Khan, Commissioner of the Department of Transportation of the City of New York (the DOT) (collectively defendants) move, pursuant to CPLR 2217(a), CPLR 2221, and the Uniform Rules for the New York State Trial Courts § 202.3, to change venue of this action to Queens County or, in the alternative, to dismiss the action in its entirety on the grounds of the absence of a necessary party, non-justiciability, time-bar, documentary evidence, and failure to state of cause of action, except declaring as to the second cause of action pursuant to Article 15 of the Real Property Actions and Proceedings Law (RPAPL), that the claims asserted by plaintiff Cypress Hills Cemetery (plaintiff or the Cemetery) are invalid, and that plaintiff does not have any easement rights to access, ingress, egress or to cross the Jackie Robinson Parkway at ground or "grade level."
Facts and Procedural History
Plaintiff is a not-for-profit corporation which owns and operates Cypress Hills Cemetery, which is located in both Brooklyn and Queens. Plaintiff commenced this action to determine claims on real property pursuant to Articles 15 and 20 of the RPAPL seeking, among other things, to enforce implied easements to have access onto and/or across, at ground or "grade-level" the Jackie Robinson Parkway, formerly the Interborough Parkway (the Parkway), a commuter parkway which bisects the Cemetery at the location of two former bridges which traversed the Parkway.
The subject Cemetery was established in 1848. Its principal office has always been located in Kings County. In 1848, the Interborough Parkway did not exist, and the Cemetery consisted of one contiguous parcel. In 1928, the City acquired a portion of the Cemetery's land by eminent domain for the construction of the Interborough Parkway. Part of the proposed Parkway would run through the Cemetery and divide it into two portions, namely the "Northern Parcel" and the "Southern Parcel."
By resolution dated October 18, 1928, the Board of Estimate of the City of New York authorized the erection of bridges to traverse the Parkway. The minutes of the meeting held that day state:
"In connection with the project three bridges are to be built to eliminate grade crossings at [c]emetery roads. Before the project can be authorized it will be necessary to establish the roadway and sidewalk treatment . . ."
The reference to three bridges actually refers to the two former bridges and an underpass.
In 1931, the Cemetery requested the City to consider permitting it grade-level ingress and egress onto the Parkway. By letter dated November 11, 1931, Mr. Andrew Johnson, the City's Engineer of Highways, responded to the then-Cemetery's president, Mr. W. Miles, that it would be "impossible . . . to provide access from [the] Interboro Parkway to the Cemetery at the point suggested by you because of the fact that the retaining walls have been built." Mr. Johnson further stated:
"With regard to the entrance on the south side which you state is the road leading to the Abbey in section 14, your attention is called to the fact that no provision has been made for cross traffic on the Interboro Parkway since it is obstructed by a central pedestrian walk. Bridges No. 1 and No. 2 provide suitable means of crossing [the] Interboro Parkway."
The Cemetery responded by requesting ingress and egress onto the Parkway, but noted that it was not seeking permission to cross the Parkway ("[w]e do not ask for the crossing of this entrance," "and as you will note this is not to cross the Interboro [sic] Parkway for the reason as you state that this is a highway, and [sic] concrete path or walk in the centre [sic] of road"). By letter dated May 18, 1932, the City confirmed that it received detailed drawings of the bridge approaches from the Cemetery and that the project would be completed.
In or about 1933, construction of the Parkway commenced and divided the then-existing Cemetery into the Northern Parcel and Southern Parcels. Soon thereafter, the City constructed two bridges (the bridges) and a tunnel or underpass (the underpass) which connected the two parcels of the Cemetery land severed by the Parkway. The bridges serviced Cemetery vehicles and also provided access to relatives of the interred to the Cemetery. The general motoring public did not use the bridges.
After years of use, the bridges had come into severe disrepair. In June, 1990, Mr. Peter Pizzuco, P.E., Acting Assistant Commissioner of the DOT, advised the Cemetery that the City would reconstruct the two bridges with City funds, but also noted that the City did not concede that it owned the bridges or was legally responsible for any necessary repairs or rehabilitation.
In or about 1998, the DOT contracted for the inspection and testing of the bridges. The inspection and testing showed that the concrete on the bridges had deteriorated so severely that they could not be repaired, and that the bridges had to be replaced. In April, 2002, the City advised the Cemetery that since the bridges were unfit for use in their current condition, they would be demolished. The City noted that since it was not obligated to maintain the bridges, it was inappropriate to spend public funds to replace them.
In 2005, plaintiff commenced an action in Supreme Court, Queens County for a judgment pursuant to Article 15 of RPAPL to determine its claim of its alleged easements over the bridges and underpass. Specifically, plaintiff sought to enjoin the City from interfering with its right of way over the bridges and underpass, and to direct the City to repair and/or replace the bridges. Venue was premised upon the location of the real property pursuant to CPLR 507. Thereafter, defendants moved for summary judgment dismissing the complaint, and plaintiff moved for summary judgment against defendants. By order dated March 16, 2005, the court (Satterfield, J.) granted defendants' motion to dismiss the complaint, and denied plaintiff's motion for summary judgment, finding that plaintiff did not have an easement in the subject bridges and underpass and that defendants were under no obligation to repair and/or replace the bridges. Sometime in March, 2006, the City demolished the bridges.
Plaintiff appealed the order and judgment of Justice Satterfield, and by order entered December 26, 2006, the Appellate Division, Second Department, modified the order and judgment to the extent of holding that plaintiff had made a prima facie showing entitling it to judgment as a matter of law "that it had an easement to cross the Jackie Robinson Parkway at the location of the subject bridges and subject underpass" ( Cypress Hills Cemetery v City of New York , 35 AD3d 788, 789). The court, however, affirmed that branch of the order which held that the burden of maintaining and/or replacing the bridges and underpass remained with plaintiff.
In this regard, the Second Department held that "[t]he enabling statute for the condemnation of land to build the Interboro Parkway . . . authorized affected cemeteries to build bridges over the Parkway. It did not require the City to construct such bridges, or to maintain them, but expressly put the burden of construction upon the cemeteries (L 1924, ch 565). That the City constructed the bridges in the first instance does not change this allocation of the burden, nor imply an agreement by the City to continually repair or replace the bridges" ( id. at 790).
Based upon the order of the Appellate Division, in January, 2007, the Cemetery's president, Mr. John Desmond, requested that the DOT remove the barriers on the Parkway and install the appropriate traffic control devices to permit the Cemetery to cross the Parkway at the location of the former bridges. In response, the DOT advised the Cemetery's attorney that the Cemetery did not have an easement to cross the Parkway at grade-level, and asserted that the Cemetery only had an easement with regard to the underpass.
In October, 2007, plaintiffs commenced the instant RPAPL Article 15 action. Venue in this county was premised upon plaintiff's principal place of business, pursuant to CPLR 503 (a) and (c). The complaint alleges that by virtue of the Second Department's decision, the Cemetery possesses implied easements to cross the Parkway at the locations of the former bridges, that defendants intentionally interfered with the easements by erecting barriers along each side of the Parkway and at its center dividing line, preventing the Cemetery, its guests, and employees access to the right of ways granted by the easements; and that defendants refused to erect appropriate traffic control devices, which prevented plaintiff from using the easements. The complaint also alleges that the enabling legislation to create the Parkway, Chapter 565 of the Laws of 1924 (the Act), expressly permitted the Cemetery to construct gates onto the Parkway for the purposes of ingress and egress, permitted funeral processions to use the Parkway for purposes of ingress and egress to the Cemetery from the Parkway, and that defendants' failure to install safety control devices on the Parkway effectively prevented the Cemetery from exercising its rights pursuant to the Act, and defeated its easements rights, causing plaintiff irreparable damages. The complaint sets forth five causes of action seeking injunctive and monetary relief. The first cause of action seeks an order pursuant to Article 20 of the RPAPL, directing the City to desist from interfering with plaintiff's alleged grade-level easement rights by removing the obstructions on the Parkway and installing traffic lights. The second cause of action seeks a declaration of rights to real property pursuant to Article 15 of the RPAPL and an order directing the City to desist from interfering with plaintiff's statutory and implied easement rights. The third cause of action "in equity" alleges that defendants violated plaintiff's statutory and implied easements rights and seeks to enjoin defendants from obstructing those rights. The fourth cause of action seeks damages in the amount of $100 million for defendants' violation of plaintiff's statutory and implied easements rights, and the fifth cause of action "pleads in the alternative" that plaintiff has an implied easement at the location of the former bridges "in the event" the order of the Second Department "is not interpreted to have judicially declared that [p]laintiff had easements at each of such locations [of the former bridges] for purposes of traversing and ingress-egress to the lands of [p]laintiff." Defendants thereafter moved to change venue or, in the alternative, to dismiss and/or for a declaration in their favor and against plaintiff.
The pertinent part of the Act provides that "and it is further provided that any such Cemetery association may in its discretion build bridges over or tunnel under any such street, road, avenue or parkway in order to facilitate Cemetery purposes, and may erect entrance ways for ingress to or egress from Cemetery grounds; that funeral processions may be allowed to pass over any such street, road, avenue or parkway to and from the Cemetery from all directions."
Analysis
In support of that branch of their motion to change venue, defendants argue that plaintiff has engaged in forum shopping, in violation of CPLR 2217, CPLR 2221 and the Uniform Rules of the New York State Trial Courts § 202.3 (that there shall be "continuous supervision of each action and proceeding by a single judge"), by bringing this action in Kings County, rather than in Queens County, to avoid referral of the matter to Judge Satterfield, who ruled against plaintiff in the Queens County action. In this regard, defendants assert that the present controversy was commenced close in time to the conclusion of the Queens County action, and pertains to almost identical issues. Defendants also maintain that since the Parkway at issue in this action lies in Queens, not Kings County, and the portions of the Cemetery's property at issue are also located in Queens County, Queens County has the strongest nexus to courts and the facts of this controversy.
Plaintiff opposes, arguing that unless venue is improper, the venue chosen by the plaintiff becomes the designated venue if more than one venue can be chosen; that venue is proper since the Cemetery's office is located in Kings County (CPLR 503[c] and [d]); and that since the Cemetery is located in Queens and Kings County, venue can be brought in either county. Further, plaintiff asserts that CPLR 2217(a) only applies to motions within a single action, which is not the case here, since the instant complaint does not seek to re-litigate the issues of the Queens County action, namely the existence of an easements and the City's duty to maintain the bridges. In addition, plaintiff argues that CPLR 2221 is inapplicable since it is not seeking to renew or reargue the order and judgment of Justice Satterfield.
This branch of defendants' motion is denied. As an initial matter, although plaintiff is a resident of Kings County based upon its principal place of business (CPLR 503[a] and [c]), venue under these sections is improper since CPLR 503(a) applies "[e]xcept where otherwise prescribed by law." Since CPLR 507 provides that "[t]he place of trial of an action in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property shall be in the county in which any part of the subject of the action is situated," and since part of the Cemetery is located in Kings County, for this court to obtain jurisdiction of this action, venue should have been based upon CPLR 507, rather than CPLR 503(a) and (c) (emphasis added) ( Regal Boy Enters. Intl. VII, Inc. v MLQ Realty Mgt., LLC , 22 AD3d 738, 739). While the incorrect CPLR section was designated in placing venue, venue is still proper in Kings County pursuant to CPLR 507. Further, where, as here, real property is located in two counties, venue in either county is proper ( Fairchild v Union Ferry Co., 117 Misc 470; Diamond v Papreka, Misc 3d, 7 Misc 3d 1006A, 2005 NY Slip Op 50465U, 2005]).
As to defendants' contention that venue in Kings County, in effect, violated CPLR 2217(a), the court notes that this section provides for a transfer of a motion "to a judge who decided a prior motion in the action (emphasis added)." While the court recognizes that the instant action is related to the Queens County action ( see Harvey v Finnick, 112 Misc 2d 686), the Queens County action is no longer pending, as the Appellate Division, Second Department modified the order and judgment of Justice Satterfield to the extent of granting plaintiff partial summary judgment by declaring that it had an implied easement at the location of the subject bridges and underpass. Notably, despite defendants' contention that both actions pertain to almost identical issues, the present action seeks relief which was not sought in the Queens County action. As such, the court regards the instant action as separate from the action commenced in Queens County ( see Panzer v Berman, 53 Misc 2d 122, 123; compare Glover Bottled Gas Corp., 89 AD2d at 1007 [where a court denied a petitioner's motion to vacate an arbitration award and respondents' cross motion to confirm with leave to renew upon submission of a copy of the transcript of the arbitration hearing, and a different justice, who did not have a copy of the transcript or the arbitration award, granted respondents' cross motion to confirm the arbitration award without a hearing, the better practice would have been for the second justice to refer the matter to the justice who had decided the prior motion to vacate and cross motion to confirm the action]). In addition, while the court recognizes "[t]he concept that continuity in judicial supervision of an action advances the expeditious disposition of the matter and avoids the waste of judicial time" ( Carpenter v Browning-Ferris Industries, Inc., 192 Misc 2d 793, 795 [2002]), in light of the different relief sought in this action than that sought in the Queens County action, venue of this action in this county does not contravene the aim of the Individual Assignment System. Furthermore, defendants' contention that venue should be placed in Queens County since the portion of the Parkway at issue in this action lies in Queens County lacks merit where, as here, it is undisputed that part of the real property which will be affected by this decision and order is located in Kings County. Finally, this matter does not involve a motion to renew or reargue, and thus plaintiff was not required to bring this action in Queens County pursuant to CPLR 2221. Therefore, this branch of defendants' motion for a change of venue is denied.
On the merits, defendants raise various arguments in support of that branch of their motion which seeks to dismiss the complaint. However, as a threshold issue, the court finds that this action is barred by the doctrine of res judicata. In this regard, "[u]nder the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding" ( Matter of ADC Contr. Constr., Inc. v Town of Southampton, AD3d, 2008 NY Slip Op 3638, 2 [2008], quoting Abraham v Hermitage Ins. Co. , 47 AD3d 855 , 855). "The fact that causes of action may be stated separately, invoke different legal theories, or seek different relief will not permit relitigation of claims" ( id.; see also Matter of Hodes v Axelrod, 70 NY2d 364; Matter of Reilly v Reid, 45 NY2d 24).
Applying these principles, the first cause of action alleged in the Queens County action was that plaintiff had "a right of way and easement over [the] [b]ridges and [t]unnel; that the City, in violation of its easement and other of its acquired rights, unlawfully threatened to demolish the bridges without erecting suitable replacements which would render impassable" Cemetery roads between the Southern and Northern parcels of the Cemetery; and that unless the City was enjoined from interfering with plaintiff's "easement of right of way, in and over the [b]ridges and [t]unnel," plaintiff would suffer irreparable injury. Plaintiff's second cause of action alleged that the demolition of the bridges would constitute an illegal taking. The third cause of action alleged that plaintiff had "acquired a right-of-way over the [b]ridges and [t]unnel by prescription by the user." In plaintiff's motion for summary judgment before Justice Satterfield, as described by the memorandum in support of plaintiff submitted by the State Attorney General, plaintiff argued that it had "an easement to use two bridges and a tunnel that [were] located within the Cemetery and cross the Jackie Robinson Highway, and that the City [had] the duty to maintain and/or repair the bridges." Plaintiff did not argue, as it does now, that it had an easement which entitled it to cross the Parkway at grade-level. Since the parties in this action were the same parties to the Queens County action, and inasmuch as plaintiff's current claims that its statutory and implied easement rights entitle it to grade-level crossings on the Parkway could have been raised in the Queens County action which was disposed of on the merits, plaintiff is barred from raising its current claims before this court. While it is true that defendants did not move to dismiss the complaint on this ground, the court finds no prejudice to plaintiff in doing so ( cf. Dean R. Pelton Co. v Moundsville Shopping Plaza, Inc., 173 AD2d 201["where the wrong ground is designated but other CPLR 3211(a) grounds do apply, the court may treat the motion as having specified the right ground and grant relief, absent prejudice, which has not been demonstrated"]). In this regard, in opposing defendants' motion to change venue, plaintiff has conceded that it did not raise its current claims in the Queens County action since it argued in the Queens County action that it had easements over the bridges and tunnel and that the City had a duty to maintain and/or replace the bridges. Given this concession, and plaintiff's injection of this issue into the record, it cannot be said that plaintiff is prejudiced by dismissal on this ground.
In any event, additional bases exist which warrant dismissal of the complaint. In this regard, defendants first contend that the claims advanced by plaintiff seeking to contravene the determination made in 1928 by the Board of Estimate, an executive branch of the City government, to construct the Parkway "so as so eliminate grade crossings at Cemetery roads" are non-justiciable and must be dismissed. The court concurs. In this regard, defendants argue that the decision by the Board of Estimate not to permit grade-level crossings of the Parkway in the vicinity of, among other places, plaintiff's Cemetery, was rendered by a governmental body with final authority over such questions under the provisions of the City Charter then in effect. In support of this claim, defendants point out that under § 47 of the then-current charter, the Board of Alderman (the predecessor of today's City Council), had the power to "provide by ordinance . . . for the acquisition, and construction of parks [and] parkways . . ." Further, defendants note that this same section provided "that all the powers in this section or elsewhere in this act granted to the board of alderman shall be subject to the control of the board of estimate and apportionment over all the streets, avenues, highways, boulevards, concourses, driveways, bridges, tunnels, parks [and] parkways . . ." (emphasis added). Defendants also emphasize that the final authority exercised by the Board of Estimate as to the City's parkways, bridges and tunnels was reiterated in § 242(3) of the then-current Charter, which provided, in pertinent part, that
"The board of estimate and apportionment shall have also . . . the control of all the streets, avenues, highways, boulevards, concourses, driveways, bridges, tunnels, parks [and], parkways . . . within or belonging to the city; except as in this act otherwise provided. The powers by this act granted to the board of alderman with respect to . . . bridges, tunnels, parks [and], parkways . . . which are within or belong to the city shall be subject to the such control of the board of estimate and apportionment . . . the board of estimate and apportionment may itself originally act or may, by amendment, revision or repeal of any . . . [act] . . . by the board of aldermen or any other department or officer, exercise its said power of control; and if and when the board of estimate and apportionment shall so act or exercise such control, such action or control shall be fully and finally operative, notwithstanding any resolution, ordinance, grant or other action adopted or had by the board of aldermen or any other department or officer of the city or any omission to act on the part of the board of aldermen or other department or officer . . . (emphasis added)."
In addition, defendants point out that the Act, in authorizing the City to proceed with the Parkway, expressly stated that its provisions were subject to the terms of the City Charter, namely the City "may, according to the provisions of the Greater New York [City] Charter lay out . . . and open and construct [the Parkway]," meaning that the Act provided that the design of the Parkway, if the City chose to proceed with constructing it, would be determined by the City's government in accordance with the terms of the City Charter. Defendants conclude that it was therefore left to the discretion of the City's executive and legislative branches, in accordance with the then-current Charter, to determine how to best lay out roads and parkways within the City in general, and how to lay out the Parkway in particular, and that it is inappropriate for the court to review the determination made in 1928 by the Board of Estimate to avoid grade-level crossings along the Parkway in the vicinity of the Cemetery.
In opposition to this branch of defendants' motion, plaintiff first argues that the Act, as state law, constitutes the final decision-making authority of the State, and is therefore superior to the authority of the Board of Estimate. In this regard, although not entirely clear, it appears that plaintiff is asserting that the Act contradicts the Board of Estimate's determination that bridges were to be built to eliminate grade crossings because the Act required the City to create entryways into the Cemetery upon severance of the Cemetery's land by the Parkway, and also provided for ingress and egress with special privileges for funeral processions. Further, plaintiff maintains that since it is merely compelling the City to comply with the Act, without requesting the specific manner by which the crossings would be implemented, its claims are justiciable.
Plaintiff also argues that since the Board of Estimate mandated the construction of the bridges and the underpass, and the City has violated that resolution by demolishing the bridges, the City must desist in its obstruction of its statutory and implied easement rights and comply with the Act and the Board of Estimate's resolution to provide for grade-level crossings on the Parkway, either by building bridges or providing "appropriate traffic control devices for grade crossings." Implicit in this argument, although not directly addressed by plaintiff, is that its implied easement rights provide for grade-level crossings of the Parkway.It is well-settled that "questions of broad legislative and administrative policy [are] beyond the scope of judicial correction'" ( Ferrer on behalf of Citizens of Bronx Community School Dist. v Quinones, 132 AD2d 277, 283, quoting Jones v Beame, 45 NY2d 402, 408; see Klostermann v Cuomo, 61 NY2d 525, 536; Matter of Abrams v New York City Tr. Auth., 39 NY2d 990, 992). "Accordingly, while courts are empowered to declare the vested rights of a specifically protected class of individuals, in a fashion recognized by statute * * * the manner by which the State addresses complex societal and governmental issues is a subject left to the discretion of the political branches of government'" ( id., quoting Matter of New York State Inspection, Sec. Law Enforcement Employees v Cuomo, 64 NY2d 233, 239-240; Klostermann, 61 NY2d at 535-536 ["Generally, the manner by which the State addresses complex societal and governmental issues is a subject left to the discretion of the legislative and executive branches of our tripartite system"]). In short, "[t]he paramount concern [in determining whether an issue is justiciable] is that the judiciary not undertake tasks that the other branches [of government] are better suited to perform" ( Klostermann, 61 NY2d at 535).
In light of the foregoing principles, the court concludes that the manner in which parkways, bridges, and tunnels are constructed and laid out is an "inherently governmental and political [issue] and not judicial in nature" ( Jamaica Chamber of Commerce v Metropolitan Transp. Auth., 159 Misc 2d 601, 603-604 [decisions such as where to route buses or whether streets should be one-way or two-way raises issues which are inherently governmental]). As indicated above, the Board of Estimate, which made the determination in 1928 not to permit grade-level crossings of the Parkway near the Cemetery, was the decision-making body with final authority under the City Charter then in effect. In this regard, although the Board of Aldermen had the power "to provide by ordinance for the . . . acquisition and construction of parks and parkways," pursuant to § 47 of the then current Charter, § 47 of the Charter also provided that this power was subject to the control of the Board of Estimate "over all the . . . bridges, tunnels, parks, [and] parkways." The authority of the Board of Estimate to control the bridges, tunnels, parks and parkways is further evidenced by § 242(3) of the Act, which stated that the Board of Estimate had power over, among other things, the bridges, tunnels, parks and parkways; that when the Board of Estimate exercised this control, it was "fully and finally operative;" and that its provisions were subject to the terms of the City Charter.Under the circumstances, it would be inappropriate to review the determination made by the Board of Estimate as to how to lay out and configure the Parkway.
Further, the relief sought by plaintiff, namely to permit grade-level crossings at the location of the bridges and tunnel on the Parkway, implicates a "a complex issue of transportation planning [which] is one that is more properly resolved by the governmental agencies charged with those specific responsibilities" ( Jamaica Chamber of Commerce, 159 Misc 2d at 604). Since preemption by this court of the City's decision-making authority with respect to the construction of the Parkway would "embroil the judiciary in the management and operation" of the [City's transportation] system, a task the courts are not suited to perform'" ( McKechnie v New York City Transit Police Dep't of New York City Transit Authority, 130 AD2d 466, 468, quoting Matter of NY State Inspection, Sec. Law Enforcement Emples., Dist. Council 82, 64 NY2d at 239), the court finds that plaintiff's claims are non-justiciable.
As to plaintiff's contentions noted above, merely because plaintiff is not seeking the specific manner by which the crossings should be implemented does not render its claims justiciable. Even without reliance upon the expert affidavits of Mr. Gerard Soffian, Licensed Professional Engineer, Assistant Commissioner of the DOT, and Director of the DOT's Division of Traffic Management, regarding the overwhelmingly adverse effects of implementing the proposed grade-level crossings, it is clear that such implementation is better left to the expertise of the governmental agencies charged with those specific responsibilities ( Jamaica Chamber of Commerce, 159 Misc 2d at 604). In any event, plaintiff's contention that the Act mandated defendants to "create entrance ways into the Cemetery upon the severance of the Cemetery's land by the Parkway" is rejected. In pertinent part, the Act provides that:
"any such cemetery association may in its discretion build bridges over or tunnel under any such street, road, avenue or parkway in order to facilitate cemetery purposes, and may erect entrance ways for ingress to or egress from cemetery grounds; that funeral processions may be allowed to pass over any such street, road, avenue or parkway to and from the cemetery from all directions[.]"
Although the Act permitted the Cemetery to build bridges over or tunnels under the Parkway, it did not require the City to provide entrance ways to the Parkway. As noted above, the Act afforded the option of erecting entrance ways for ingress to or egress from the Cemetery grounds to plaintiff. Further, the first clause of the passage did not permit grade-level crossings. While the second clause did not indicate whether ingress or egress was permitted at grade-level, in light of the use of the word "such" in the third clause, which refers to those roads and parkways over which plaintiff was permitted to build bridges or under which it was permitted to build tunnels, the third clause is most reasonably interpreted as permitting funeral processions to pass over the Parkway via the bridges or under tunnels built by plaintiff, not to pass across the Parkway via grade-level crossings. Moreover, inasmuch as the word "over" used in the first clause refers to passing above the Parkway, it may be presumed that when it was used in the third clause, "over" had the same meaning ( see McKinney's Statutes § 236).Plaintiff also argues that since defendants violated the directive of the Board of Estimate by demolishing the bridges, they must desist in their obstruction of its statutory and implied easement rights, and comply with the Act and the Board of Estimate's resolution to provide for grade-level crossings on the Parkway, by either building bridges or providing "appropriate traffic control devices for grade crossings." As noted above, the Act did not require defendants to provide plaintiff with grade-level crossings on the Parkway. Furthermore, the minutes of the Board of Estimate indicate that the bridges were to be built to "eliminate grade crossings at Cemetery roads." In addition, to the extent that plaintiff relies upon the decision of the Appellate Division, Second Department to show its entitlement to grade-level crossings, this claim is rejected. That decision held that plaintiff has an "easement to cross the Jackie Robinson Parkway at the location of the subject bridges and subject underpass [and that] [t]he easement was implied by existing use upon severance of the land on which the subject bridges and subject underpass were built." Inasmuch as second sentence explains that the easement was implied by existing use, and it is undisputed that plaintiff never crossed the Parkway at grade level, the only inference to be drawn from the decision is that the implied easement rights existed above the Parkway's grade level, at the location of the former bridges, and below the Parkway's grade level, at the location of the underpass. Moreover, as noted above, plaintiff did not seek a declaration that its implied easements entitled it to grade-level crossings at the Parkway, either in the action commenced in Queens County or on appeal before the Appellate Division, Second Department. Rather, the complaint in the Queens County action alleged that plaintiff had "a right of way and easement over [the] [b]ridges and [t]unnel," and in its motion for summary judgment, plaintiff argued that it had "an easement to use two bridges and a tunnel that [were] located within the Cemetery and cross the Jackie Robinson Highway, and that the City [had] the duty to maintain and/or repair the bridges." Inasmuch as plaintiff did not claim that it had an easement to cross the Parkway at grade-level, it is not likely that this claim was considered or decided upon by the Second Department.
In any event, where, as here, the easement itself is not clearly defined, courts may use evidence in the record, including "extrinsic facts . . . which disclose the location, size and situation of the lands affected by the grant, the nature and use of the improvements thereon and the practical construction which defendants and plaintiffs' predecessors in title have placed on the [easement] for a long period of years" in order to define the easement( see generally Auburn Syracuse Elec Syracuse Elec Le Sawyer v Squillace, 29 Misc 2d 24, 27).
Here, relevant documentation indicates that grade-level crossings were not contemplated by the parties. As noted, the minutes of the Board of Estimate's meeting in 1928 state that the bridges and the underpass were built to ensure that the Cemetery would pass over or under the Parkway, not that it would cross it at grade level. In addition, a diagram of the bridges and tunnels, entitled "Map Showing A Change in the Grades and the Position of a Cemetery Road on Interborough Parkway from Cypress Hills Street to Forest Park In the Borough of Queens," dated July 31, 1929 (the 1929 Map), and adopted by the Board of Estimate on July 25, 1930, shows the Parkway in the vicinity of the Cemetery. The 1929 Map details plans for bridges and an underpass, but does not contain plans for grade-level ingress to or egress from the Cemetery, or grade-level crossings. Further, a pronouncement signed and sealed by the Cemetery, dated December, 1927, states that the Cemetery accepted, approved, and consented to the survey or map, dated October 28, 1927, entitled "Map showing a change in the lines and grades of Interborough Parkway from Cypress Hills Street to Forest Park, in the Borough of Queens (the 1927 Map)." Although defendants could not locate the 1927 map, defendants properly note that it is fair to infer that the 1929 Map which has survived is not materially different from the 1927 Map to which the Cemetery consented, which makes no provision for grade-level access by the Cemetery. Specifically, as defendants note, if the 1929 Map had removed grade-level access that the 1927 Map contained, it is reasonable to infer that the Cemetery would have opposed the 1929 Map, yet there is no evidence that such was the case. In addition, as noted above, the November 11, 1931 letter from the Queens Borough president's Bureau of Engineering to Mr. Miles, plaintiff's then president, states that "no provision has been made for cross traffic on Interborough Parkway since it is obstructed by a central pedestrian walk. Bridges No. 1 and 2 provide suitable means of crossing [the] Interborough Parkway." As noted above, plaintiff's president responded by letter dated November 13, 1931, and requested that the City construct grade-level ingress and egress onto the Parkway, but stated that he was not seeking permission to cross the Parkway ("we do not ask for the crossing of this entrance"). Further, as defendants point out, plaintiff's then president did not assert that the Cemetery was losing any Parkway access previously granted to it by, for example, the 1927 Map, and this provides an additional basis to conclude that the 1927 Map, which the Cemetery expressly consented to, did not provide for any grade-level access to the Parkway. Finally, there is no evidence that the grade-level ingress and egress requested by the Cemetery in 1931 was ever built, or that the Cemetery pursued its request after it was rejected. Accordingly, the evidence demonstrates that plaintiff's implied easement does not entitle it to grade-level crossings on the Parkway. This interpretation is also consistent with the Act, which permitted plaintiff to "build bridges over or tunnel under" the Parkway, and that funeral processions were permitted to "pass over any such . . . parkway to and from the cemetery in all directions."
While plaintiff argues that the locations of the easements are clearly defined, the maps to which it refers fails to support this claim. Moreover, the City's DOT's map to which plaintiff refers shows the locations of the crossings but does not indicate whether or not they are at grade-level. Further, plaintiff's argument that defendants violated the directive of the Board of Estimate by demolishing the bridges is also without merit. Plaintiff has made no showing that defendants were required to replace the bridges once they were no longer sustainable. In any event, the Second Department's order held that merely because "the City constructed the bridges in the first instance does not . . . imply an obligation by the City to continually repair or replace the bridges" ( Cypress Hills Cemetery, 32 AD3d at 738). Moreover, inasmuch as plaintiff is permitted to rebuild the bridges, defendants have not violated the command of the Board of Estimate that there be three locations for crossing the Parkway. Since the claims raised by plaintiff are non-justiciable, its complaint must be dismissed.
Even assuming, however, that plaintiff's claims are a proper subject for this court's review, and are not barred by the doctrine of res judicata, defendants' motion to dismiss would still be granted. Plaintiff's first cause of action alleges that defendants "[a]t all times herein" wrongfully obstructed its easements by "maintaining barriers and/or refusing to provide traffic control devices so that [p]laintiff, its guests . . . [and] employees . . . were, and still are, prevented from enjoying the right of ways." Plaintiff seeks an order pursuant to Article 20 of the RPAPL directing defendants to refrain from interfering with its easements by removing the barriers and installing traffic lights. Plaintiff concedes that this section does not apply to the rights set forth in the Act because by its express terms, Article 20 only applies to easements resulting from agreement or covenant.
RPAPL 2001 (1), entitled "Action to enforce certain covenants restricting use of land or for damages for breach to be brought within two years" provides that its terms apply "to actions to enforce a covenant or agreement restricting the use of land or to recover damages for breach thereof, including an action predicated on infringement of an easement or other interest created by the covenant or agreement, to the extent that the restriction relates to structures that may be erected" ( Oneida County Mobile Home Sales, Inc. v Niagara Mohawk Power Corp., 47 NY2d 954, 956; RPAPL 2001). RPAPL 2001 (2) provides that:
"An action to enforce the covenant or agreement by compelling the removal or alteration of a structure, or to recover damages for breach of the covenant or agreement, or to recover damages for infringement of an easement or other interest in the premises so restricted, cannot be maintained unless it is commenced (a) before the expiration of two years from the completion of the structure concerned, or (b) before September one, nineteen hundred sixty-five, whichever shall be later" (emphasis added).
"RPAPL 2001 applies when a party is seeking to remove or alter a structure that is in violation of covenants or restrictions pertaining to real property" ( Ram Island Homeowners Ass'n v Hathaway Realty, 305 AD2d 390, 391; East Is. Assn. Inc. v Carbone, 150 AD2d 422, 423). Since the issue raised in this cause of action does not arise from an agreement or covenant, and since this cause of action is premised exclusively upon RPAPL 2001, this cause of action must be dismissed. Even assuming this cause of action arose from an agreement or covenant, it would be time-barred. In this regard, while plaintiff contends that this section does not create a statute of limitations; "rather, it presumes that a plaintiff has released his cause of action if it is not commenced within two years of a specified occurrence, and must be asserted by a defense of release" ( see City of New York v Delafield, 236 AD2d 11 [1st Dept 1997], appeal denied 91 NY2d 811), this court finds to the contrary ( see Oneida County Mobile Home Sales, Inc., 47 NY2d at 956 [describing the statute as setting forth a two-year statute of limitations]; East Island Assn., Inc., 150 AD2d at 423 [2d Dept][same]). Moreover, in applying the statute of limitations, the claim would be time-barred. In this regard, although plaintiff argues that its cause of action did not accrue until March, 2006, when the bridges were demolished, and that it is timely since this action was commenced in 2007, the claim alleges that "at all times herein" defendants wrongfully obstructed its easement and that plaintiff and its guests "were, and still are, prevented from enjoying the right of ways." Since the barriers plaintiff seeks to have removed have been in place for nearly 80 years, long after the two-year statute of limitations set forth in RPAPL 2001(2) expired and more than forty years after the alternative 1965 deadline, the claim would be time-barred.
Finally, assuming RPAPL 2001(2) creates a defense which must be pleaded, absent a showing of prejudice, failure to plead an affirmative defense in a notice of motion is not fatal ( cf. Dean R. Pelton Co., 173 AD2d at 201). Here, although the defense of release was not asserted, defendants moved to dismiss this cause of action as time-barred, and plaintiff had an opportunity to oppose this branch of the motion with its release argument. Plaintiff was not prejudiced nor does it allege prejudice, thus the defect in the pleading may be excused.
Plaintiff also argues that because defendants failed to state that the motion was brought pursuant to CPLR 3211, the automatic extension of time to answer set forth in CPLR 3211(f) has not been triggered, and therefore defendants are in default. Plaintiff has failed to cite to any authority for this proposition. In any event, unless prejudice can be demonstrated, failure to cite to the CPLR 3211 section upon which a defendant relies is not a substantive defect ( see e.g. Dean R. Pelton Co., 173 AD2d at 201). Plaintiff also argues that some of the bases for seeking dismissal do not fall within the scope of CPLR 3211, namely the City's reliance on the doctrines of laches and abandonment, the argument that the equitable relief sought in the third cause of must be denied as unduly burdensome to defendants, and the City's request for a declaration in its favor with respect to the second cause of action. This argument is also rejected. Defendants' motion to dismiss the entire complaint on grounds of non-justiciability was proper ( see e.g. Campaign for Fiscal Equity v Marino, 87 NY2d 235, 240 [1995]) as was that branch of their motion to dismiss the first cause of action upon the statute of limitations (CPLR 3211[a][5]). Further, a pre-answer dismissal of a cause of action for a permanent injunction on the grounds that it is unduly burdensome is proper ( see e.g. Village of Hempstead v SRA Realty Corp., 208 AD2d 713, 714 [1994]). The fourth cause of action to dismiss is based upon CPLR 3211(a)(7), and the appropriateness of the fifth cause of action is not challenged. Defendants do not seek to dismiss the second cause of action, but seek a declaration that it is invalid. This cause of action may not be dismissed without such declaration ( Crawford v Town of Huntington 299 AD2d 446 [2002], appeal denied 99 NY2d 507 [2003]). Plaintiff also asserts that defendants' motion in fact seeks summary judgment, but that defendants have not denoted it as such pursuant to CPLR 3211 (c). CPLR 3211 (c) is not applicable here since that section applies when the court elects to treat a motion pursuant to CPLR 3211 as a motion for summary judgment. Finally, plaintiff asserts that defendants' motion is defective because certain of the defenses are fact-based, and that without joinder of issue, any decision with respect to these defenses would be unwarranted. To the extent this claim applies, it will be addressed in each separate cause of action.
The second cause of action seeks a declaration of rights to real property pursuant to Article 15 of the RPAPL and an order directing the City to desist from interfering with plaintiff's statutory and implied easement rights. The court has already made that declaration by determining that plaintiff's statutory and implied easement rights do not entitle it to cross the Parkway at grade-level. However, in addition to the reasoning set forth in that analysis, defendants argue that even assuming that plaintiff once had any grade-level easement rights, it has abandoned those rights. Defendants also assert that since plaintiff has failed to assert those rights, it is guilty of laches, rendering the relief sought by plaintiff inequitable. The court concurs.
"In order to prove an abandonment it is necessary to establish both an intention to abandon and also some overt act or failure to act which carries the implication that the owner neither claims nor retains any interest in the easement" ( De Jong v Abphill Associates, 121 AD2d 678, 679). "Furthermore, acts evincing an intention to abandon must be unequivocal. They must clearly demonstrate the permanent relinquishment of all right to the easement" ( id.). Here, it is undisputed that plaintiff has never used its alleged grade-level easements rights; it was informed of and agreed to the City's plan to build the Parkway without the grade-level crossings, and never attempted to assert its rights to the allege grade-level easements until it was held, nearly 80 years after construction of the Parkway, that the City was not required to replace the demolished bridges.
Noting that it has crossed the Parkway via the bridges and tunnel since the Parkway's construction, plaintiff argues, in effect, that it did not abandon its grade-level easement rights because it commenced an action in Queens County to enjoin the demolition of the bridges when the City threatened to do so. However, plaintiff does not address its failure to assert its rights to grade-level easements in the nearly 80 years since the Parkway was built without grade-level crossings. Moreover, there is no evidence to support the claim that the City provided crossings via the bridges in response to plaintiff's request. In any event, even assuming this occurred, this does not mean that plaintiff did not abandon its purported grade-level easements.
Plaintiff argues that abandonment is not an enumerated ground to seek dismissal under CPLR 3211 and that in any event, factual issues exist precluding dismissal on this ground. While plaintiff correctly notes that on a motion to dismiss pursuant to CPLR 3211 the facts as alleged in the complaint are accepted as true ( McGuire v Sterling Doubleday Enters., L.P., 19 AD3d 660, 661, appeal denied 7 NY3d 701), "i[t] is well settled that bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on a motion to dismiss for failure to state a cause of action. When the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not whether she has stated one" ( Meyer v Guinta, 262 AD2d 463, 464). Here, where defendants established that plaintiffs claims are barred by abandonment, dismissal pursuant to CPLR 3211 (a) (7) is warranted.
"[T]he doctrine of laches . . . bars recovery where a plaintiff's inaction has prejudiced the defendant and rendered recovery inequitable" ( Roth v Black Star Publ'g Co., 302 AD2d 442, 443, appeal denied 99 NY2d 507). "Prejudice is established by showing an injury, change of position, loss of evidence, or some other disadvantage resulting from the delay" ( Resk v City of New York, 293 AD2d 661, 662). To utilize this defense, defendants have to establish their lack of knowledge that plaintiff would assert a claim that it had statutory and implied easement rights to cross the Parkway at grade-level and an unconscionable delay on plaintiff's part that induced defendants to act or refrain from acting in ways that would prejudice them if plaintiff was now permitted to assert this claim ( see Sparkling Waters Lakefront Assn., Inc. v Shaw , 42 AD3d 801, 803).
Here, the fact that the parties' dispute arises out of events which occurred nearly 80 years ago provides a compelling basis for the application of laches ( id.). In this regard, the record reveals that plaintiff acquiesced to the building of the Parkway without grade-level crossings. As such, the City built the Parkway free of grade-level crossings with a circuitous route which abuts the Cemetery. In particular, Mr. Soffian of the DOT states that the route "includes numerous turns that are sufficiently sharp that drivers' line of sight to the far side of the turn is limited;" that the Parkway is adjacent to higher ground for much of its route, including much of the vicinity of the Cemetery; that the line of sight is restricted by retaining walls and/or close-lying trees, hills and other topographical features," and that as a result, "[c]reating at-grade crossings at the location of the former [b]ridges, assuming that they would be controlled by traffic signals, would pose serious adverse impacts on the operation and safety of motorists on the Parkway." In support of this claim, Mr. Soffian states that "the visibility factors, including the curves in the Parkway's route near the [C]emetery, limits [a driver's] forward-vision capability, and this short forward-vision capability, in combination with the legally permitted traffic speed (45 miles per hour) and the relatively sudden stops inherent in traffic light operation, would pose serious risks for the safety of motorists." While Mr. Soffian states these risks could be ameliorated by placing additional traffic warning lights and other devices further in advance of the grade-level crossings, he opines that these would not eliminate the increased risk that drivers would inadvertently run through red lights and possibly become involved in right-angle collisions with funeral processions and/or rear-ending stopped vehicles on the Parkway.
A driver's ability to see ahead.
Further, Mr. Soffian asserts that the DOT Division of Bridges estimates that a total of $1.6 million was spent on maintaining the former bridges and preventing their collapse between 1994 (when the DOT first learned that they were structurally unsafe) and 2006 (when the DOT demolished them). In addition, it is undisputed that the delay in demolishing the bridges was due to plaintiff's insistence that they remain standing, including plaintiff's threats of litigation and its commencement of the Queens County action to enjoin their demolition. Since plaintiff did not object to the obstruction of its alleged grade-level easement rights, defendants would be severely prejudiced, at the very least, by the expense of having to reconfigure the Parkway by removing barriers and center guidelines, and installing traffic control signals on the Parkway to accommodate plaintiff, a task whose cost, according to Mr. Soffian, would be substantial.Plaintiff argues that the City did not build the Parkway without grade-level crossings in reliance upon plaintiff's decision to forego the implementation of those crossings. In this regard, plaintiff asserts that the evidence clearly supports that the City drew its plans for a center walkway before addressing the cemetery's request for grade-level crossings, and that in response to the Cemetery's request, the City provided for crossings over the Parkway via the bridges. Lastly, plaintiff states that it was only in 2006, when the City destroyed the bridges, that use of its easement was obstructed by the City. These arguments must be rejected. As an initial matter, plaintiff fails to support its claim that the City built the bridges in response to plaintiff's request. Even had this been the case, plaintiff remained silent for nearly 80 years before asserting its purported grade-level easement rights.Moreover, the use of the purported grade-level easements was obstructed long before 2006, since the barriers which caused the obstruction existed when the Parkway was built. In short, plaintiff's nearly 80-year delay in asserting its alleged rights has prejudiced defendants, rendering the relief plaintiff seeks inequitable ( see Kolczynski v Greene, 280 NY 712 [plaintiff had no rights of ingress or egress from the property owned by him to the subject highway and over the property dedicated to the State pursuant to relevant statutes and was also guilty of laches in permitting State to implement plans for a park before the commencement of his suit, and after the situation had materially changed]; Sparkling Waters Lakefront Assn., Inc., 42 AD3d at 803 [in dispute arising out of conveyances that were made and publicly recorded more than 30 years before action was commenced, plaintiffs waited to assert their claims while defendants and their predecessors subdivided a dam strip and made use of a lake without objection until 1994, leading defendants to be unaware that plaintiffs might seek to terminate those rights]). Plaintiff's claim that this defense may not be the basis for dismissal pursuant to CPLR 3211 is rejected.
Defendants also argue that they have a prescriptive public easement pursuant to Highway Law § 189. This statute 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" (Highway Law § 189). "The public use requirement has been construed to necessitate a showing that the road was open to use by the public and kept in repair or taken in charge and adopted by the public authorities" ( Danial v Delhi, 185 AD2d 500, 502 [1992], appeal denied 81 NY2d 706 [1993]). Defendants argue that since plaintiff has conceded that the public has used the alleged easement-burdened portions of the Parkway over the last 80 years, and since defendants have maintained these portions of the Parkway since approximately 1924 with guardrails, median dividers, and barriers, the public has acquired a permanent easement over the easement-burdened portions of the Parkway, effectively terminating plaintiff's purported easement rights. Defendants have not demonstrated to the court's satisfaction that this statute applies to the lands of the State of New York. As such, this defense cannot serve as a basis for dismissal of this cause of action ( Orchard Grove of Dutchess, Inc. v State, 1 Misc 3d 810, 817 [2003]]["The court can find no case in which a public highway was declared as a result of either public use or town maintenance where the owner of the fee in question was the State. This result would appear required by the strong public policy prohibiting the use of adverse possession and prescriptive rights against the State"]).
The third cause of action "in equity" alleges that the wrongful conduct of defendant violates plaintiff's implied and statutory easement rights and deprives plaintiff of valuable property rights; that plaintiff has no adequate remedy at law and will suffer irreparable harm if its "rights of way" and easements are continually obstructed; and seeks to enjoin defendants from obstructing or interfering with its implied and statutory easement rights to "pass and to re-pass freely at all times on foot or with vehicles or as the case may be at each of the locations of the former [bridges]; " by directing defendants to remove the barriers, guardrails, and median divider on the highway and to install traffic lights and other infrastructure on the Parkway.
See Amended verified complaint, ¶ 18.
Inasmuch as the court has already determined that plaintiff's statutory and implied easement rights do not entitle it to grade-level crossings on the Parkway, this cause of action must be dismissed. In any event, "[a] mandatory injunction, which is used to compel the performance of an act, is an extraordinary and drastic remedy which is rarely granted and then only under unusual circumstances where such relief is essential to maintain the status quo pending trial of the action" ( Matos v City of New York , 21 AD3d 936, 937). In determining whether to grant a mandatory injunction, " the court must weigh the conflicting considerations of benefit to the [party seeking the injunction] and harm to the [party subject to the injunction] which would follow the granting of such a drastic remedy'" ( Nat Holding Corp. v Banks , 22 AD3d 471, 474, appeal denied 6 NY3d 715, quoting Sunrise Plaza Assoc. v International Summit Equities Corp., 288 AD2d 300, 301, appeal denied Sunrise Plaza Assocs., L.P. v Int'l Summit Equities Corp., 97 NY2d 612 [internal quotation marks omitted]). "An injunction will be withheld as oppressive when it appears that the injury is not serious or substantial and that to restrain the acts complained of would subject the other party to great inconvenience and loss" ( Forstmann v Joray Holding Co., 244 NY 22, 29-30).
Here, Mr. Soffian states in his affidavit that the Parkway carries approximately 69,000 vehicles per day in both directions; that the peak morning period volumes in the eastbound and westbound directions are 2,200 and 2,800 vehicles per hour, respectively; and that during the peak afternoon period, volumes in the eastbound and westbound directions are 2,700 and 2,400 vehicles per hour, respectively. Further, he asserts that this heavy volume peak-hour usage is consistent with the Parkway's role as a major arterial thoroughfare for Brooklyn and Queens.
In addition to asserting that implementing grade-level crossings would have serious adverse impacts on the operation and safety of motorists, he also notes that assuming facts provided by opposing counsel, namely forty funerals per week, two-thirds taking place on weekdays; up to ninety cars per funeral, traveling at an average speed of ten miles per hour; with the maximum carrying capacity of the Parkway at 1900 vehicles per hour per lane under normal operating and weather conditions, funeral processions crossings the Parkway would cause substantial delays for Parkway traffic. Based upon a number of variables, including start-up loss and clearance time, a 90-vehicle funeral procession would take approximately five minutes to cross the Parkway. Multiplied by 40 funeral processions per week, with 67% occurring on weekdays, there would be at least five funerals each weekday and about six funerals each weekend day, and traffic on the Parkway would be stopped for five minutes on each of those occasions. Mr. Soffian states that as a result, if a funeral procession required stopping the Parkway traffic for five minutes, it would result in a queue length of 3,600 feet and would take approximately 29 minutes to clear the queue and return the Parkway to its normal operations. In sum, he states that each funeral procession would cause approximately 35 minutes of jammed traffic involving 1400 vehicles in either direction, and that creating the proposed crossings is the type of traffic management plan he, as a traffic engineer, would seek to avoid.
Counsel for plaintiff states that "funeral processions number from just a few cars up to an approximate 100 vehicles." Mr. Desmond, President of the Cemetery, states in his affidavit that "[m]any of the Cemetery's funeral processions now number in excess of 50 cars."
Finally, Mr. Soffian notes that reconstruction to provide grade-level crossings would be substantial, including, but not limited to, a detailed traffic analysis; a topographical survey; a geometric design of the proposed intersections; design, placement, manufacturing and installation of traffic signs; a traffic signal design; construction drawings; ongoing coordination, review and approval of design and drawings from various city and state engineers; preparation of contract bid documents, application for funds, and review of contract bids; performance and supervision of work; and ongoing and preventive maintenance.
Defendants argue that the extraordinarily burdensome injunctive relief sought by plaintiff is unwarranted and inequitable, since plaintiff's injury is not serious, substantial, or irreparable. In this regard, defendants point out that plaintiff still has access across the Parkway via the underpass, can travel from one portion of the cemetery via public roads — a trip plaintiff concedes takes "about four minutes," and that plaintiff has access into and out of the cemetery via at least three gates. Defendants note that in the event plaintiff wants further access, it may chose the far less disruptive alternate solution of building replacement bridges.
To demonstrate the hardship the cemetery sustained after the bridges were removed, Mr. John Desmond, plaintiff's president, asserts in his affidavit that the one "internal connecting road" remaining is insufficient to accommodate the traffic previously handled by three roads. In this regard, he notes that the cemetery performs 2000 internments per year and estimates that over 450,000 individuals annually visit the cemetery or attend interments there; that there are field workers and office staff working within the Cemetery's boundaries; that the Cemetery consists of 225 acres; and that many of the Cemetery's funeral processions number in excess of 50 cars. Mr. Desmond also states that the Cemetery is now compelled to transport its heavy maintenance equipment through a single tunnel road along with funeral processions, visitors, and the very deceased to be buried. He asserts that visitors and those transporting maintenance equipment must travel from the cemetery's gate on Jamaica Avenue in Brooklyn to the gate on Cooper Avenue in Queens, where the Cemetery's service yard is located, and in the reverse direction, which is a hardship on the cemetery as well as to non-cemetery traffic on the nearby road of Cypress Hills Avenue, which is the only adjacent road to cross over the Parkway. Further, Mr. Desmond states that the underpass has an obvious height and size restriction not encountered on the bridges or by traveling on grade, which makes it difficult for the Cemetery to transport equipment from one side to the other. In addition, when used by funeral processions, the tunnel is not usable by the Cemetery staff. Mr. Desmond also notes that in April, 2003, L-C Associates, an engineering and consulting firm, contacted him on behalf of the New York State DOT expressing concern for the safety of what is known as the infamous "S" turns of the Parkway. He states that contrary to the City's allegations, "some sort of traffic control devices or re-engineering may actually be a safety benefit to the traveling public and not a hardship as claimed by the City." Plaintiff argues that the City's actions have severely impacted the Cemetery's ability to function and fulfill its mission by crippling the Cemetery's ability to internally travel within itself, thereby causing it irreparable damage.
While removal of the bridges has caused plaintiff to sustain hardship with respect to the internal operation of the Cemetery, it is clear, based upon the affidavits submitted by both parties, as well as the allegations of plaintiff's own complaint, that a virtual reconfiguration of this portion of the Parkway to ameliorate this hardship would impose a substantial and extraordinary burden on the City and the motoring public, including, but not limited to, the adverse impact on the safety of the Parkway motorists; widespread and extensive traffic delays on the Parkway in both Queens and Brooklyn; and substantial expense to the City. Further, despite the substantial inconvenience sustained by plaintiff, it still has access across the Parkway via the tunnel, can travel from one area of the cemetery to the other via public roads, and has access into and out of the cemetery via at least three gates. Finally, plaintiff may opt to replace the bridges if it desires further access over the Parkway.
In this regard, the complaint asserts that defendants have erected barriers along each side of the Parkway and at its center dividing line and that the Parkway is a busy road with automobiles traveling at high speeds. Further, plaintiff has annexed to the complaint a diagram of the circuitous route of Parkway in the vicinity of the Cemetery.
Plaintiff contends that since the Saw Mill River Parkway in Westchester has grade crossings, which are not a burden in Westchester, then there is no reason to believe that grade-crossings would be burdensome on the Parkway. This argument is rejected as it is unsupported by any competent evidence. Moreover, counsel's and Mr. Desmond's contention that redesign of the Parkway may enhance the safety of the road is speculative. In view of the foregoing, the third cause of action must be dismissed.
Plaintiff's fourth cause of action alleges that its "damages are incalculable in that [d]efendants' conduct has interfered with [its] operation of [its] cemetery which is its sole purpose for existing," and that N-PCL 1501 states that it is in the State's vital interest in the proper operation of corporations which own and operate cemeteries within the State." Based upon the foregoing, plaintiff seeks $100 million in damages, plus attorneys' fees, costs and disbursements. Inasmuch as this court has held that plaintiff's statutory and implied easement rights do not entitle it to grade-level crossings on the Parkway, this cause of action must be dismissed. In any event, to the extent that this cause of action nominally sets forth a cause of action, it is duplicative of the remedy sought in the "wherefore" clause of the complaint.
The fifth cause of action "pleads in the alternative that it has an easement by implication at each of the locations of the former [b]ridges . . . in the event the . . . [Second Department] [d]ecision and [o]rder is not interpreted to have judicially declared that [p]laintiff had easements at each of such locations for purposes of traversing and ingress/egress to the lands of [p]laintiff." Plaintiff, in effect, is requesting that this court interpret the order of the Second Department as having declared that it has grade-level easement rights. As an initial matter, defendants correctly assert that regardless of how the court interprets the order of the Second Department, it cannot grant relief inconsistent with that decision and order. As such, no relief may be granted under this cause of action. In any event, in light of the court's determination set forth above, this cause of action must be dismissed. The Clerk of the Court is directed to enter judgment dismissing the complaint.
In light of the court's determination, defendants' contention that plaintiff failed to join the State as a necessary party is rendered moot.
This constitutes the decision and, order of the court.