Opinion
May 27, 1988
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Dillon, P.J., Boomer, Pine, Balio and Lawton, JJ.
Judgment unanimously reversed on the law with costs, and judgment granted defendants, in accordance with the following memorandum: Plaintiff, the owner of Holiday City, a six-theater, two-restaurant complex in the Town of Cheektowaga, sought to compel defendants to reopen two town highways which provided additional access to plaintiff's parking lot. Plaintiff waived any claim to monetary damages. The court erred in ordering defendants to remove the metal barriers from those town highways and in permanently enjoining defendants from blocking those streets in the future. A municipality may regulate and control traffic, and unless its acts are arbitrary and capricious, courts will not intervene (Cities Serv. Oil Co. v City of New York, 5 N.Y.2d 110, 115, rearg denied 5 N.Y.2d 1041, cert denied 360 U.S. 934). An abutting owner's rights are subject to the municipality's right to regulate traffic for the benefit of the public, and "[a]lthough the abutting owner may be inconvenienced by a regulation, if it is reasonably adapted to benefit the traveling public he has no remedy unless given one by some express statute" (Jones Beach Blvd. Estate v Moses, 268 N.Y. 362, 368). Defendants presented proof at trial that their action was based on concern for the safety of residents of the barricaded streets, which clearly is a legitimate basis for the exercise of power to regulate the use of highways (see, Bakery Salvage Corp. v City of Lackawanna, 24 N.Y.2d 643, 646, mot to amend remittitur granted 24 N.Y.2d 1025; cf., Quaglia v Incorporated Vil. of Munsey Park, 44 N.Y.2d 772). We further note that we need not determine whether defendants' action constituted a taking of plaintiff's property (cf., Sukiennik v State of New York, 26 A.D.2d 769) because, even if there had been a taking, plaintiff's remedy would be just compensation (French Investing Co. v City of New York, 39 N.Y.2d 587, 593, rearg denied 40 N.Y.2d 846, cert denied 429 U.S. 990), relief it explicitly waived. Accordingly, defendants are entitled to judgment declaring that they may barricade the subject town highways.