Opinion
# 2014-044-545 Claim No. 121012 Motion No. M-85027
09-05-2014
TOWN OF HORSEHEADS v. THE STATE OF NEW YORK
TOWN ATTORNEY, TOWN OF HORSEHEADS BY: John P. Mustico, Esq. HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General
Synopsis
Defendant's motion for summary judgment granted on the issue of whether legal access to an appropriated property existed at the time of appropriation.
Case information
| UID: | 2014-044-545 |
| Claimant(s): | TOWN OF HORSEHEADS |
| Claimant short name: | HORSEHEADS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121012 |
| Motion number(s): | M-85027 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | TOWN ATTORNEY, TOWN OF HORSEHEADS BY: John P. Mustico, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 5, 2014 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed this claim to recover damages from the appropriation of two parcels of real property (the Property) located in the Town of Chemung, Chemung County. In accordance with the Uniform Rules for the Court of Claims (22 NYCRR) § 206.21 (a), the allegations of the claim are deemed denied without the necessity of an answer. Defendant now moves for summary judgment, solely with regard to the issue of whether legal access to the Property existed at the time of this appropriation. Claimant opposes the motion.
Defendant contends that during an appropriation in 1962, the State acquired a former railroad bed (the Former Railroad Bed) immediately to the north of the Property and extinguished any easements claimant may have had to access the Property utilizing the Former Railroad Bed. Defendant asserts that the Court should find in this claim that the Property did not have any legal access prior to this appropriation and value it accordingly.
Conversely, claimant argues that once defendant appropriated the Former Railroad Bed, the Property was abutting a street or highway, and thus claimant and its predecessors in interest had ingress to and egress from the Property. Claimant further asserts the appropriation map indicates that part of the current taking is "fee without access," which contradicts defendant's current position and supports an inference that claimant had legal access to the Property.
Defendant, as the movant on this motion for summary judgment, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).
In order to obtain title to property taken by eminent domain, defendant is required to prepare an acquisition map "indicating and describing . . . the particular . . . interest or right, in the real property that is acquired including metes and bounds or section, block and lot numbers" (EDPL 402 [A] [1]). Title vests in the State when the acquisition map is filed in the office of the county clerk of the county in which the property is located (EDPL 402 [A] [3]). Further, when property is taken through eminent domain, it is taken in fee simple absolute and extinguishes all easements held by the former land owner (Matter of Ossining Urban Renewal Agency v Lord, 39 NY2d 628 [1976]; Thomas Gang, Inc. v State of New York, 19 AD3d 861 [3d Dept 2005]).
In support of this motion, defendant has submitted an affidavit of Christopher Kramer, Senior Land Surveyor for the Department of Transportation (DOT), Region 6. Kramer states that he has worked for DOT for 26 years, and has been a Professional Land Surveyor since 2000. Kramer indicates that he has reviewed NYS DPW SH 5048 Acquisition Map No. 76, Parcel No. 99 (Map No. 76), NYS DPW SH 5048 Acquisition Map No. 77, Parcel No. 100 (Map No. 77), and NYS DOT SH 67-4 Acquisition Map No. 106, Parcel Nos. 156 and 157 (Map No. 106) as well as the claim and deposition testimony of claimant's Highway Superintendent Mark Vanderhoff. Kramer states that Map No. 76 and Map No. 77 shows that defendant appropriated a railroad right-of-way and track map (the Former Railroad Bed) of the New York Lackawanna and Western Railway operated by the Delaware-Lackawanna and Western Railroad Company (then Erie-Lackawanna Railroad Company) in 1962. He notes that the Former Railroad Bed ran along the southerly boundary of State Highway (SH) 67-4 Lowman Waverly and along the northerly boundary of the Property. He further states that the Former Railroad Bed was established as the highway boundary by Map No. 76, and was specifically appropriated by the State in fee without right of access to and from the abutting properties, in which the Property is included. Based upon this documentary evidence, Kramer opines that claimant and its predecessors in interest have not had legal access to the Property since the 1962 appropriation. He acknowledges that claimant has apparently accessed the Property since that time by leaving Route 17 and traveling onto the Former Railroad Bed, then turning south onto the Property. However, because the Former Railroad Bed is the current highway boundary, Kramer opines that any access points crossing that boundary are illegal and unauthorized.
Kramer has provided this affidavit in support of both this motion and defendant's Motion No. M-85028 to dismiss Claim No. 121063 filed by David F. Mazzarese, who owned property adjacent to the Property which has also been appropriated by defendant. However, the Court will refer only to the information in Kramer's affidavit which is relevant to this claim.
The access route was described by Superintendent Vanderhoff in his deposition testimony (see infra).
Mark Vanderhoff, claimant's Highway Superintendent, testified at an examination before trial that claimant obtained the Property which contains numerous topsoil pits in 1993. Vanderhoff stated that claimant has repeatedly removed topsoil since that time for use in Town projects. He indicated that Highway Department vehicles would access the Property by driving off Route 17 eastbound onto an access road which ran parallel to Route 17, and then would turn from the access road onto the Property. To exit, they would leave the Property by turning back onto the access road, then turn and cross Route 17 eastbound (at the point they initially exited the highway) and proceed across the median to enter Route 17 westbound.
In this case, defendant has submitted admissible evidence that it obtained title to the Former Railroad Bed pursuant to the filing of Map No. 76 and Map No. 77. Map No. 76 contains a metes and bounds description of the Former Railroad Bed, and, specifically states that it is the "[d]escription and map of property which the superintendent of public works deems necessary to be acquired by appropriation in the name of the people of the [S]tate of New York in fee, - without right of access to and from abutting property-, for purposes connected with the highway system of the [S]tate of New York pursuant to [Highway Law § 30]." , Accordingly, defendant has met its burden of establishing that claimant did not have legal access to the Property and is entitled to judgment as a matter of law.
Affidavit of Christopher B. Kramer, sworn to Apr. 25, 2014 (Defendant's Motion for Summary Judgment, Exhibit B), Exhibit 7 at 5.
The Court notes that in Map No. 77, defendant obtained title to a portion of the Roberts Hollow Creek bed. This appropriation was also made "without right of access to and from abutting property" (id., Exhibit 8 at 3).
The burden now shifts to claimant to set forth admissible evidence which would create questions of fact concerning its access to the Property. Claimant has not submitted any evidence in opposition, but merely argues that because the Former Railroad Bed became the highway boundary and the Property abuts that boundary, claimant had access to and egress from the Property. It is true that "an owner of property abutting a public highway has . . . a right to reasonable ingress and egress to and from the abutting land" (Penningroth v State of New York, 35 AD2d 1024, 1024 [3d Dept 1970], lv denied 28 NY2d 484 [1971]; cf. Van Valkenburgh v State of New York, 131 AD2d 903 [3d Dept 1987] [where the State, when appropriating the claimants' direct access to the highway, clearly provided them with a reasonable alternate access]). However, in this case, defendant clearly had appropriated the Former Railroad Bed "without access" to the remaining properties in order to create the highway boundary. Notwithstanding that it abutted the highway after the appropriation, the Property did not have access to the highway (see Howell v Brozzetti, 246 AD2d 929 [3d Dept 1998]; see also Reiss v State of New York, UID No. 2011-037-005 [Ct Cl, Moriarty III, J., Feb. 22, 2011]).
Presumably, the owner at that time of the 1962 appropriation was compensated (see Howell, 246 AD2d at 929-930).
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Claimant also contends that by designating the taking of Map No. 106, Parcel 156 as "fee wo/a" (presumably without access), and Map No. 106, Parcel 157 as "fee," defendant has acknowledged that prior to this taking, claimant did in fact have access to the Property. As set forth previously herein, claimant did not have legal access to the Property after the 1962 appropriation. Notwithstanding the apparent inconsistencies in the designations as "fee wo/a" and "fee," claimant has failed to submit any evidence of an express grant from defendant creating a right of access in favor of claimant. Further, claimant has not set forth any support for its assertion that the designations on Map 106 somehow created access where none had existed since 1962.
Moreover, to the extent that claimant may be asserting that its consistent use of the Property created an easement by prescription despite the lack of legal access, it is without merit. It is well settled that a municipality, including the State, cannot lose title to property which it holds in its governmental capacity by adverse possession (Kings Park Yacht Club, Inc. v State of New York, 26 AD3d 357 [2d Dept 2006]; see also City of New York v Wilson & Co., 278 NY 86 [1938]; Monthie v Boyle Rd. Assoc., 281 AD2d 15 [2d Dept 2001]). Because claimant has failed to submit admissible evidence sufficient to create a question of fact, defendant's motion for summary judgment is granted.
Accordingly, the Court finds that claimant did not have access to its property over the Former Railroad Bed at the time of the subject appropriation.
September 5, 2014
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on defendant's motion:
1) Notice of Motion filed on April 30, 2014; Affirmation of Joseph F. Romani, Assistant Attorney General, dated April 28, 2014, and attached exhibits. Memorandum of Law dated April 28, 2014.
2) Memorandum in Opposition of John P. Mustico, Esq., Town Attorney for the Town of Horseheads, dated May 26, 2014.
Filed papers: Claim filed March 9, 2012.