Opinion
239/05.
Decided January 29, 2008.
Thomas M. Lancia, Esq., New York, NY, Attorney for Plaintiff.
Elana Gilaad, Ford Harrison LLP, New York, NY, Attorney for Defendant.
Upon the foregoing papers, plaintiff's motion for summary judgment is granted in part and denied in part. Cross-motion by defendants John and Marguerite Viteritti for summary judgment is granted in part and denied in part. Cross-motion by defendants Michael and Diane Falzarano for summary judgment is granted to the extent indicated below
This is an action for a permanent injunction restraining defendants from obstructing Shore Road, a paved thoroughfare located in the Village of Bayville. While Shore Road was originally a private right of way, the Village alleges that it has become a public street.
Defendants John and Marguerite Viteritti are the owners of two lots of residential property located in the Village and known as One Tides Court. The lots are designated as Section 29, Block 104, Lots 20 and 27 on the Land and Tax Map of Nassau County. Tides Court is a cul-de-sac which abuts on Shore Road in the vicinity of the Viteritti's lots. There are six residential properties on Tides Court. Lot 27, which contains the Viteritti's home, is located at the northern foot of the cul-de-sac. Lot 20 is located on the opposite side of Shore Road, overlooking protected wetlands and Mill Neck Creek. Shore Road runs from Godfrey Avenue, a public street, in a northeasterly direction to Arlington Lane, a distance of approximately 800 feet. According to the Village, Arlington Lane is a private street which is in public use. There are approximately 30 miles of roads in Bayville, and 2/3 of the miles are private roads open to the public. While the Village performs some maintenance work on these private roads, it appears that the primary responsibility belongs to the adjoining property owners.
Lot 27 was originally part of a larger tract which was owned by John Viteritti's company, Tides Construction Corporation, and subdivided by Tides Construction in 1974. The subdivision map which Tides Construction submitted to the Village Planning Board and the Nassau County Planning Commission provides that "the lands shown on this map as roads, streets, or highways . . . are hereby irrevocably offered for dedication to the municipality having jurisdiction thereof." The map shows Shore Road at its intersection with Tides Court. Both Tides Court and the portion of Shore Road from Tides Court to Godfrey Avenue were paved by Tides Construction in the course of developing the subdivision project. The company also installed water mains and a fire hydrant and granted the Village an easement to maintain them. The Viteritti's took title to Lot 27 in November, 1974. Lot 20 was not conveyed pursuant to the subdivision, and it is unclear when the Viteritti's took title to that parcel. In 1976, John Viteritti erected a barricade across Shore Road at a point north of its intersection with Tides Court and between lot 20 and lot 27. The barricade is 29 feet long and 4 ½ feet high. It is presently comprised of "decorative boulders, " a fence, shrubs, grass, and Belgium blocks. The barricade was erected pursuant to an "easement agreement" among Viteritti and the owners of other properties which abutted Shore Road. Because of the barricade, Tides Court is not accessible from streets to the north. The only means of ingress is to take Godfrey Avenue to Shore Road, approaching from the south.
Shortly after the barricade was constructed, Victor Ort, the Village Attorney, wrote to John Viteritti, requesting that he remove it. Ort noted that the barricade might interfere with the fire protection of Shore Road properties because it was located near a hydrant. Ort also observed that the barricade had impeded garbage collection. However, the Viteritti's ignored Ort's request. It appears that the issue of the barricade was dormant during the 1980's. In April 1994, James Goolsby, the Village Building Inspector, wrote to John Viteritti, requesting that the matter of the barricade be discussed. A handwritten memo on Goolsby's letter indicates that Viteritti had "visited [the] office and explained [the] condition [and it was] O.K." Nevertheless, Victoria Siegel, the Mayor of Bayville, maintains that "over the years, "she has attempted to have Viteritti remove the barricade. According to the Village's current Code Enforcement Officer, if a fire occurred on Shore Road west of the barricade, firefighters would be required to travel approximately an extra mile to reach it. The Viteritti's maintain that emergency service workers have "immediate access" to the various premises.
This action seeking an injunction ordering the Viteritti's to remove the barricade was commenced on January 7, 2005. The Village maintains that the barricade constitutes a public nuisance in that it interferes with effective fire protection, police and ambulance service, the movement of traffic, and the provision of utilities. Alternatively, the Village maintains that Shore Road was dedicated to public use pursuant to the subdivision or became a village street by prescription pursuant to Village law § 6-626. The Viteritti's counterclaim for a judgment declaring that the portion of Shore Road running across their property is part of their private property and not a Village street.
Michael and Diane Falzarano are the owners of the property known as 121 Godfrey Avenue. The Falzarano property is located at the intersection of Godfrey Avenue and Shore Road, south of Tides Court and the area where the barricade was constructed. The Falzarano's acquired their property in 2004 and were not parties to the original easement agreement. By order dated July 22, 2005, the court granted the Falzarano's motion to intervene as defendants.The Falzarano's support the Village's motion for an injunction compelling removal of the barricade. However, the Falzarano's oppose the Village's application for a declaratory judgment that Shore Road has become a village street. The parties are now cross-moving for summary judgment.
Dedication is the intentional donation of land by its owner for a public use, and essentially it is in the nature of a gift( Tarrytown v. Woodland Lake Estates, Inc., 97 AD2d 338, 340 [2d Dep't 1983]). Whether land has been dedicated by the owner to the use of public travel and whether it has been accepted for that purpose by the municipality involves the intent and acts of both of the parties( New York v. Transit Corp., 273 NY 394, 400-01). Where a subdivision plot is made and recorded, the intention of the owner is generally indisputable( Flack v. Green Island, 122 NY 107, 114).
The Viteritti's claim that Shore Road was referred to on the map simply for "identification purposes, " and that Tides Construction did not intend to dedicate either Shore Road or Tides Court as a public street.The Viteritti's further claim that because Tides Construction and/or the Viteritti's were not the sole owners of Shore Road at the time of the subdivision, no dedication was possible. The court notes that the Viteritti's have not disclosed what other party may have had an interest in the section of Shore Road on which the barrier is located. Moreover, "dedication rests upon an estoppel in pais"( Lehigh and Hudson River Railway Co. v. Warwick, 164 AD 55 [2d Dep't 1914]). Thus, a purported owner may by his conduct be precluded from denying ownership or an intent to dedicate, if the municipality has changed its position to its detriment.
The easement agreement provided that a barrier would be erected and maintained on the property of Thomas Hoge, which was located immediately north of the Tides Court subdivision (See Viteritti's Ex.G and Village's Ex. 7). However, the easement agreement further provided that if the barrier could not be maintained on Hoge's property, it would be erected on "lot 135 and 144." Since Hoge withdrew from the agreement, it appears that the barrier was not able to be maintained on his property. In any event, lot 135 and 144 are actually the Viteritti's property, lot 20 and lot 27(See Village's Ex. 7).
Subdivision approval was granted upon the representation that Shore Road was irrevocably offered for dedication to the Village. Accordingly, the Viteritti's are estopped from denying the requisite ownership interest in Shore Road or an intention to dedicate the property to public use. However, by listing its public streets without including Shore Road, the Village in effect concedes that it did not accept the dedication. Indeed, the existence of the barricade across Shore Road for thirty years confirms that its dedication was not accepted. Thus, the court concludes that Shore Road has not been dedicated to the Village of Bayville as a public street.
Village Law § 6-626 provides that "All lands within the village which have been used by the public as a street for ten years or more continuously, shall be a street with the same force and effect as if it had been duly laid out and recorded as such." Use or potential use by the public will not, by virtue of that fact alone, transform a private road into a public street ( American Nassau Building Systems v. Press, 143 AD2d 789 [2d Dep't 1988]). "In addition to a finding of use by the public, there must be a finding that the road has been kept in repair or taken in charge, and thus adopted by the public authorities during the period in question"(Id).
The affidavits submitted by the Village establish that it plows and sands Shore Road, maintains fire hydrants and water mains on the road, clears debris and fallen tree limbs, repairs sinkholes, and makes other minor repairs to the street. Thus, it is clear that at least a portion of Shore Road had been adopted or taken in charge by the Village. Nevertheless, because of the barrier which has been in place for thirty years, vehicular traffic has been unable to use the street(See Catskill v. De Cicco, 2 Misc 2d 942 [Sup. Ct 1955]).
Where a claim of adverse possession is based upon an entry upon real property, the action must be commenced within one year after the entry and within ten years after the time when the right to make the entry descended or accrued(RPAPL § 501). Similarly, where a village seeks to claim land as a public street by prescription, the village must assert its claim while public use is still occurring or within a reasonable time after it has been interrupted. Because of the long delay by the Village in asserting its claim, evidence of public use of Shore Road prior to construction of the barricade is not relevant to the issue of prescription. Thus, the court cannot find that the portion of Shore Road north of the barricade has been in public use. Since there has been no public use north of the barricade since 1976, the court concludes that Shore Road has not become a public street by prescription.
"A public nuisance exists for conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons"( 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, 96 NY2d 280, 292). A public nuisance is a violation against the State and is subject to abatement or prosecution by the proper governmental authority(Id). A village or its officials are the proper parties to abate a public nuisance within the jurisdiction of the village ( Foot v. Gross, 137 AD 77 [2d Dep't 1910]).
One of the ways in which a public nuisance may be created is the unlawful obstruction of a public street( 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, supra 96 NY2d at 292-93). However, a public nuisance may also exist on private property, if the property, health or safety of a considerable number of persons is effected(See Perlmutter v. Greene, 259 NY 327 [distracting billboard]).
The court concludes that the erecting of the barricade on Shore Road was a substantial interference with the health and safety of residents south of the barricade because it interfered with their rights to fire protection and also police, ambulance, and other emergency services. The barricade also interferes with public access to Shore Road, which would otherwise be unimpeded despite its character as a private street(See D'Angelo v. Cole, 108 AD2d 541 [4th Dep't 1985], modified on other grounds, 67 NY2d 65) . The countervailing consideration of the Viteritti's desire to minimize the traffic on their street does not justify the substantial interference with the rights of the public and other Shore Road residents.
A private party who has unreasonably delays in bringing suit to abate a nuisance may be barred by the doctrine of laches if the landowner has been prejudiced( Van Cortlandt v. New York Central Railway, 265 NY 249). However, estoppel is not available against a governmental agency in the exercise of its governmental functions, absent an unusual factual situation( Pless v. Royalton, 81 NY2d 1047). Despite the Village's long delay in seeking to abate the public nuisance, the Viteritti's have not significantly altered the barricade in the ensuing years or otherwise been prejudiced.
A mandatory injunction, requiring the defendant to remove an obstruction from a public street, is a permissible remedy where the obstruction constitutes a public nuisance( New York v. Knickerbocker Trust Co., 104 AD 223 [1st Dep't 1905]). However, a mandatory injunction is an extraordinary remedy to be granted or withheld by a court of equity in the exercise of its discretion( Kane v. Walsh, 295 NY 198). "The determination of the availability of such relief depends not alone on the right of the party seeking it but as well on the appropriateness of its issuance in the circumstances in which it is sought"( Gerges v. Koch, 62 NY2d 84, 95). The Court concludes that in the case at bar, a mandatory injunction is neither necessary nor appropriate. It has not been shown that defendants have an ability to remove the obstruction in a manner more expeditious than that of the plaintiff. Moreover, since the obstruction is accessible via Godfrey Lane and Shore Road, the Village need not encroach significantly upon the Viteritti's property in order to abate the nuisance. Thus, the Village may remove the obstruction itself, subject to a right of recoupment of expense from the defendants. Shore Road is not one of the private streets as to which the Village may apportion the cost of improvement or maintenance among all the property owners of the street improvement district(Bayville Village Code § 64-11[C]). Thus, the Village may apportion the cost of removal of the barricade only among the property owners of Shore Road(Id). It will be up to the Village, in the first instance, to determine whether the Falzarano's are property owners of "that particular street." Accordingly, an injunction shall issue enjoining defendants from interfering with efforts of the Village to remove the barricade on Shore Road.
The parties are hereby directed to appear for a conference on February 11, 2008 at 9:30 a.m.
This shall constitute the decision and order of the Court.