Opinion
EF2018-66119
03-19-2019
Denise PRZYBYLO and Paul Przybylo, Plaintiffs, v. Gary BULL, Defendant. David Duell, Superintendent of Highways of the Town of Queensbury, Nominal Defendant.
Whiteman, Osterman & Hanna, LLP, Albany (Tara MacNeill and Robert L. Sweeney, of counsel), for plaintiffs. John M. Silvestri, Glens Falls, for Gary L. Bull, defendant.
Whiteman, Osterman & Hanna, LLP, Albany (Tara MacNeill and Robert L. Sweeney, of counsel), for plaintiffs.
John M. Silvestri, Glens Falls, for Gary L. Bull, defendant.
Martin D. Auffredou, J.
Plaintiffs are the owners of two parcels of real property in the Town of Queensbury, New York, which are identified as tax map parcel numbers 290.18-1-12.1 and 290.18-1-11. The back parcel, identified as tax map parcel 290.18-1-12.1, is an unimproved lot consisting of forest and wetlands ("the wooded parcel"). A portion of the wooded parcel connects to a public road, Butternut Hill Drive. Plaintiffs' other parcel, identified as tax map parcel 290.18-1-11, is located to the east of the wooded parcel, on Butternut Hill Drive ("the residence parcel"). Defendant Gary L. Bull ("defendant" or "Bull") is the owner of a parcel of real property in the Town of Queensbury, identified as tax map parcel number 290.18-1-26, which is located to the north of the wooded parcel ("the Bull parcel"). The Bull parcel is landlocked.
In 2006, Bull commenced a proceeding against plaintiff's predecessors-in-interest to the wooded parcel, Charles and Beverly Maine, seeking to establish rights to an express right-of-way and/or easement by necessity over the wooded parcel ("the Maine action"). Supreme Court (Aulisi, J.) dismissed Bull's claims in the Maine action, finding that the Bull parcel and the wooded parcel were not conveyed by a common grantor creating an easement by necessity or express right-of-way over the wooded parcel. The Court further held that Bull "is not entitled to an express right of way or an easement by necessity over land owned by the defendants herein and plaintiff and his successors in interest are forever barred from asserting such claims in the future." Bull subsequently submitted an application to the Town of Queensbury Superintendent of Highways, pursuant to Highway Law § 300 et seq. , to establish a private road across the same route which was at issue in the Maine action but apparently abandoned the application. Four years later, Bull submitted another application to commence a proceeding pursuant to Highway Law § 300 et seq. , but again abandoned the application. On or about July 20, 2018, Bull submitted a third application pursuant to Highway Law § 300 et seq. , seeking to establish a private road over plaintiffs' property, over the same route that was at issue in the Maine action. The Highway Law proceeding was set for trial on December 11, 2018. Plaintiffs commenced this action on November 28, 2018, seeking a judgment, declaring that Bull cannot yet establish necessity for a private road over plaintiffs' property, pursuant to Highway Law § 300 et seq. , and that Bull is permanently enjoined from pursuing proceedings against plaintiffs under Highway Law Article 12 [sic], pending a determination by a court of competent jurisdiction on the issue of access to the Bull parcel by way of an easement by necessity north to Haviland Road.
Plaintiffs move, by Order to Show Cause, for a preliminary injunction, enjoining the Highway Law proceeding initiated by Bull and presided over by nominal defendant David Duell, Superintendent of Highways of the Town of Queensbury. In the Order to Show Cause, the Court granted a temporary stay of the trial of the Highway Law proceeding. Bull opposes the motion and cross-moves to dismiss the complaint, pursuant to CPLR 1003, for failure to join necessary parties, and pursuant to CPLR 3211 [a] [7], for failure to state a cause of action.
In deciding the motion and cross-motion, the Court has reviewed and considered the following: the affidavit of Tara MacNeill, Esq., sworn to November 26, 2018, with exhibits, the affidavit of Denise Przybylo, sworn to November 21, 2018, with exhibits, the affidavit of Susan M. Englert, Esq., sworn to November 21, 2018, with exhibits, and plaintiffs' memorandum of law, dated November 26, 2018, in support of the motion; the affidavit of John M. Silvestri, Esq., sworn to December 12, 2018, with exhibits, in opposition to the motion and in support of the cross-motion; and the reply affidavit of Tara MacNeill, Esq., sworn to December 17, 2018, with exhibit, and plaintiffs' memorandum of law, dated December 17, 2018, in opposition to the cross-motion and in further support of the motion. Oral argument on the motion and cross-motion was held on December 18, 2018.
CPLR § 6301 provides:
"A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff."
The decision of whether to issue a preliminary injunction is committed to the court's sound discretion (see Doe v. Axelrod , 73 NY2d 748, 750 [1988] ; STS Steel, Inc. v. Maxon Alco Holdings, LLC , 123 AD3d 1260, 1261 [3d Dept 2014] ).
"The party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of the equities in its favor" ( Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005] ; see CPLR 6301 ; see also Doe v. Axelrod, 73 NY2d at 750.)
"[A] preliminary injunction, depends upon probabilities, any or all of which may be disproven when the action is tried on the merits" ( J.A. Preston Corp. v. Fabrication Enterprises, Inc. , 68 NY2d 397, 406 [1986] ). The existence of factual questions for a trial does not prevent a party from establishing a likelihood of success on the merits; success need not be a certainty to obtain a preliminary injunction ( Cooperstown Capital, LLC v. Patton , 60 AD3d 1251, 1252—53 [3d Dept 2009] [internal citations omitted]; see also CPLR 6312(c) ["Provided that the elements required for the issuance of a preliminary injunction are demonstrated in the plaintiff's papers, the presentation by the defendant of evidence sufficient to raise an issue of fact as to any of such elements shall not in itself be grounds for denial of the motion. In such event the court shall make a determination by hearing or otherwise whether each of the elements required for issuance of a preliminary injunction exists."] )
"The ruling on a motion for a preliminary injunction—whether granted or denied—does not establish the law of the case nor is it an adjudication on the ultimate merit of the underlying action" ( Rural Community Coalition, Inc. v. Vil. of Bloomingburg , 118 AD3d 1092, 1095 [3d Dept 2014], citing Town of Concord v. Duwe, 4 NY3d 870, 875 [2005] ; Trump on the Ocean, LLC v. State of New York, 79 AD3d 1325, 1327 [3d Dept 2010], lv. dismissed and denied 17 NY3d 770 [2011].)
" Highway Law § 300 et seq. essentially provide for a private condemnation proceeding by landowners seeking to establish a private road over the property of another" ( Leonard v. Masterson , 70 AD3d 697, 698 [2d Dept 2010] ). After an application for a private road has been submitted, the town superintendent of highways sets a date upon which a jury is selected to determine the necessity of such road. Before making the determination of necessity, the jury "shall view the premises, hear the allegations of the parties, and such witnesses as they may produce." If a determination of necessity is made, the jury assesses the damages by reason of the opening of the private road. ( Highway Law §§ 301, 306, 307.)
Twelve jurors, who must be "resident freeholder[s] of the town," are drawn and chosen (Highway Law §§ 304, 306 ). A local justice of the peace designated by the superintendent of highways attends the drawing of jurors (Highway Law § 304 ). The jurors are "drawn and chosen by the justice of the peace, in the same manner as juries are drawn in justices' courts" When the jury is sworn, the duties of the justice of the peace are completed. (Highway Law § 306.)
Plaintiffs contend that they are entitled to a preliminary injunction because, as matter of law, Bull cannot demonstrate the necessity required to establish a private road over plaintiffs' property, because Bull has failed to establish his entitlement to an easement by necessity to the north of his parcel. Plaintiffs claim that Bull has a legal right to an easement by necessity over lands located to the north of the Bull parcel and can pursue that right via a proceeding pursuant to Real Property Actions and Proceedings Law ("RPAPL") Article 15. Plaintiffs argue that if the Highway Law proceeding is permitted to continue, plaintiffs will be required to proceed with a trial presided over by the Superintendent of Highways, not a member of the judiciary. Plaintiffs contend that Highway Law § 300 et seq. is an arcane statute and does not provide any mechanism by which plaintiffs can move, pre-trial, for judgment as a matter of law and that litigants are "forced to explain complicated legal principles to a jury — without the benefit of proper jury instructions — to avoid a verdict inconsistent with applicable law." Plaintiffs claim, moreover, that the jury will be forced to decide a question of law with respect to whether Bull has an easement by necessity, which is not intended by Highway Law § 300 et seq. Plaintiffs also claim they face irreparable harm if a preliminary injunction is not granted, as plaintiffs face the possibility of condemnation for a private road that will be constructed within 20 yards of their home and will dramatically reduce the value of their home. Plaintiffs further argue that the balance of equities is in their favor, as plaintiffs' right to the quiet use and enjoyment of their property outweighs any delay in the Highway Law proceeding that will result from the issuance of a preliminary injunction, particularly in light of the delays occasioned by Bull by abandoning his prior applications pursuant to Highway Law § 300 et seq .
Plaintiffs have failed to demonstrate all of the elements required for issuance of a preliminary injunction in their favor. While plaintiffs have demonstrated that the equities weigh in their favor, plaintiffs have failed to demonstrate they will suffer irreparable harm absent an injunction. If a preliminary injunction is not issued, and the trial of the Highway Law proceeding goes forward, the jury in that proceeding may render a decision denying Bull's application (to plaintiffs' benefit). Likewise, if the jury's decision is adverse to plaintiffs, they can apply to the County Court for an order vacating or modifying the decision and, if the decision is vacated, the court may order another hearing of the matter before another jury ( Highway Law § 312 ). Thus, denial of a preliminary injunction will not necessarily cause harm to plaintiffs, let alone irreparable harm.
Moreover, plaintiffs have not established they have a likelihood to succeed on the merits. In this action, plaintiffs seek a declaratory judgment declaring that Bull cannot yet establish necessity for a private road over plaintiffs' property, pursuant to Highway Law § 300 et seq ., and to permanently enjoin Bull from pursuing proceedings against plaintiffs under the Highway Law, pending a determination as to whether Bull has an easement by necessity to the north. In essence, plaintiffs are asking this Court to usurp the function of the jury which is to be empaneled in the Highway Law proceeding to determine, initially, the necessity of the private road being sought. While Highway Law § 300 et seq. may be "arcane," as plaintiffs claim, it remains duly enacted statutory authority in this State, and Bull is entitled to pursue his claim pursuant thereto. Plaintiffs have not cited any authority for their position that Bull is required to commence an action pursuant to RPAPL Article 15 to determine whether he has an easement by necessity over parcels to the north of his before he can pursue an application for a private road, pursuant to Highway Law § 300 et seq . Further, the statutory scheme clearly provides that in a proceeding brought pursuant thereto, the jury is to decide the necessity of the private road being sought. Any amendments to the statute and the procedure set forth therein, or pre-requisites to its invocation, must be made by the Legislature, not this Court. Based upon the applicable law, the Court is constrained to deny plaintiffs' motion.
Bull's cross-motion focuses mainly on arguments concerning Highway Law § 300 et seq . With respect to that portion of his cross-motion which seeks to dismiss the complaint for failure to join necessary parties, the Court finds that Bull has not demonstrated that landowners north of the Bull parcel, whom he has not identified with any specificity, would be adversely affected by a judgment rendered in the instant action and, therefore, are necessary parties to this action. Moreover, even assuming, arguendo , those individuals or entities are necessary parties, the appropriate remedy would be to join them as parties ( CPLR 1003 ). Therefore, that branch of Bull's cross-motion which seeks to dismiss the complaint pursuant to CPLR 1003 must be denied.
Moreover, Bull has not offered any argument to support his request that the Court dismiss the complaint pursuant to CPLR 3211 [a] [7]. Giving the complaint a liberal construction, accepting the allegations as true and providing plaintiffs with the benefit of every favorable inference, as it must (see, e.g., Nomura Home Equity Loan, Inc. v. Nomura Credit & Capital, Inc. , 30 NY3d 572, 582 [2017] [internal quotation marks omitted]; Vestal v. Pontillo , 158 AD3d 1036 [3d Dept 2018] ), the Court finds that the complaint states a cause of action. Therefore, that branch of Bull's cross-motion which seeks to dismiss the complaint pursuant to CPLR 3211 [a] [7] must be denied.
Based upon the foregoing, it is
ORDERED that plaintiffs' motion is hereby denied; and it is further
ORDERED that the temporary restraining order set forth in the Order to Show Cause signed on November 29, 2018, is hereby vacated; and it is further
ORDERED that Bull's cross-motion is denied.
The within constitutes the Decision and Order of this Court.