Vil. of Mamaroneck v Town of Rye

[*1] Vil. of Mamaroneck v Town of Rye 2005 NY Slip Op 52268(U) [11 Misc 3d 1054(A)] Decided on December 22, 2005 Supreme Court, Westchester County LaCava, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 2005
Supreme Court, Westchester County

The Village of Mamaroneck, Plaintiff,

against

The Town of Rye, THE VILLAGE OF PORT CHESTER AND THE VILLAGE OF RYE BROOK, Defendants.



2988/98



Keane & Beane, PC

Attorneys for Plaintiff and 3rd Pty. Plaintiffs

445 Hamilton Avenue, 15th Fl.

White Plains, New York 10601

Charles T. Randall, Esq.

Chief Assistant Counsel

NYS Thruway Authority

200 Southern Boulevard

PO Box 189

Albany, New York 12201

Eliot Spitzer

Attorney General

By: Rachel Zaffrann, AAG

Attorney for 3rd Party Defendant

101 East Post Road

White Plains, New York 10601

John R. LaCava, J.

This is an action in which the parties seek a declaratory judgement as to which entity or entities has responsibility for repairing and maintaining the superstructure and substructure of the North Barry Avenue Extension Bridge ("The Bridge") which crosses the Mamaroneck River and is located wholly within the Village of Mamaroneck and partially within the Towns of Rye and Mamaroneck, New York. More specifically, the Court is asked to determine whether that responsibility falls upon the third party defendants, the New York State Department of Transportation ("NYSDOT") and/or the New York State Thruway Authority ("NYSTA"), the [*2]state entities, or whether it lies with the local municipalities.

A non-jury trial was conducted on October 3, 5, 6, and 7th, 2005. After due deliberation, and upon a consideration of the credible evidence adduced at the trial and the post trial submissions of the parties, the Court makes the following findings of fact, conclusions of law, and Judgement.

FINDINGS OF FACT

The Bridge, which was completed in 1957, was constructed with federal aid as part of a project wherein the route or roadway, previously consisting of North Barry Avenue, other local streets, and a locally owned wooden bridge on Barry Avenue, was relocated as part of the construction and expansion of the New England Thruway. The construction of the Thruway blocked off Barry Avenue and the stream channel of the Mamaroneck River was altered to make room for a Thruway access ramps interchange (see Joint Exhibit No.2, in evidence). To provide an outlet for local traffic, North Barry Avenue was relocated and the old bridge was dismantled. The new roadway, which required construction of The Bridge in order to span the Mamaroneck River, which formed the boundary between the town of Mamaroneck and the Town of Rye, was renamed the North Barry Avenue Extension. The Bridge, however, is not connected to any entrance or exit ramps, nor does it go over or under the Thruway. It is therefore not part of the Thruway system or necessary for its operation.

The Bridge has an identification plate in the precise form included in the design plans affixed to it. The plate displays the seal or emblem of the NYSTA and states "New York State Thruway New England Section Sta. NB 10 * 00 North Barry Ave. Mamaroneck River 1956".

The New York State Department of Public Works ("NYSDPW") was the predecessor of NYSDOT. The New England Thruway is part of the New York State Thruway System which is under the jurisdiction of the NYSTA. NYSDPW was acting as the agent of the NYSTA for the construction of those New England Thruway projects that were federally aided, and because the Thruway Authority did not have engineering staff that could provide for the design, construction, and administration of the Thruway project, while NYSDPW had such personnel.

The Bridge was built by NYSDPW in connection with the New England Thruway construction project, but project records demonstrate that it was funded with a federal aid source separate from federal aid for the New England Thruway (Federal Interstate Funds) and separate from authority funding for the New England Thruway.

Highway Law § 237 provides that towns are liable for the construction and repair of public bridges with in their bounds, and adjoining towns are jointly liable for public bridges over waters forming the boundary lines between them. Village Law § 6-604 provides that the expense of constructing or repairing a public bridge in a village is a Town charge "unless the Village assumes the whole or part of such expense". [*3]

Under Public Authorities Law § 356 of the Thruway Act, the NYSTA becomes responsible for a designated Thruway section when it adopts a resolution assuming jurisdiction. It then proceeds to operate the system in accordance with its corporate purposes under Public Authorities Law § 253 and its statutory powers. On October 10, 1957, the NYSTA and NYSDPW entered into an Agreement whereby the NYSTA and not the NYSDPW nor its successor NYSDOT would be responsible for meeting federal maintenance standards on those portions of the New England Thruway which were built with federal aid and used for Thruway purposes. This assumption of jurisdiction is reflected in the minutes of NYSTA meetings which occurred on August 12, 1957 and October 7, 1957. As indicated earlier, the federal funds used to construct the non-bonded and toll free sections of the New England section of the New York State Thruway were derived from a source which was separate and distinct (i.e. federal aid provided for Thruway construction) from the federal aid source utilized to construct the Bridge. Thus, The Bridge was not paid for by the NYSTA or financed by federal aid allocated for the New England Thruway.

On December 26, 1959, J. J. Raymond, Asistant Chief Deputy Engineer of NYSDPW issued a letter ("The Letter") to Mayor Dalfonso of the Village of Mamaroneck with copies to the Towns of Rye and Mamaroneck. The Letter stated in pertinent part: Please be advised that the work of relocating a portion of North Barry Avenue including the First Street, Lester Avenue, and Meadow Street connections and necessary intersections constructed in connection with this work located in the Village of Mamaroneck, Westchester County, made necessary by Thruway construction, has been completed and accepted on December 15, 1959. Pursuant to the provisions of Article 2, Title 9 of the Public Authorities Law, certain responsibilities with regard to maintenance of this complicated work now devolve upon the Village of Mamaroneck. It is our understanding of the law that all of the work including pavement, shoulders, slopes, guide railing, sidewalks, and other appurtenances normally as part of the highway shall be maintained and kept in repair by the Village. Furthermore, the control of ice and snow on this highway is also the responsibility of the Village.This letter is written to you because we are informed that prior to the alteration work, this road was under the jurisdiction of your municipality. However, we may have erroneous information in this regard, and for that reason duplicates of this notice are being sent to the Town of Mamaroneck and Town of Rye.

Article 2, Tittle 9 (§359[4]) of the Public Authorities Law provides: Highways combined, relocated or carried over or under a Thruway section or connection, or a highway connection, under the provisions [*4]of the proceeding subdivision, shall, upon completion of the work, revert to and become the responsibility, with regard to maintenance and repair of the state or municipality, as the case may be, formerly having jurisdiction there over.

Interpretation of the meaning and import of The Letter is disputed by the parties. The state entities, through the testimony and affidavit of Anthony E Gregory, argue that The letter is typical of reversion letters that were routinely sent to local municipalities following the construction of a roadway or bridge. According to Mr. Gregory, who is retired from the NYSTA where he worked as a civil engineer, director of construction and design, and as Chief Engineer between 1970 and 1995, when road location work is completed by or on behalf of the NYSTA, it is the normal practice to send written notice, as a courtesy, to the locality formerly having jurisdiction over the area, that the preexisting jurisdiction has reverted back to local control. Where the NYSTA or NYSDOT intended to retain jurisdiction or responsibility for some portion of a completed roadway or bridge previously under local control, the respective agency expressly stated both its intention and its responsibilities in the reversion letter (compare e.g. Gregory Affidavit, Ex. C, Thruway #5, in evidence, Village of Larchmont Chatsworth Avenue Bridge letter dated December 28, 1959, in which J.J. Raymond wrote "The framework of the bridge over the Thruway and its supports, however, will be maintained and kept in repair by the Thruway Authority"). Mr. Gregory further indicated in his affidavit (at paragraph 8) that "during my employment with NYSTA, I have signed similar reversion letters. The reversion letter is not intended to be an agreement, or to modify any statutory duties." The state entities additionally argue that the terms "maintenance", "Primary and Secondary Maintenance", and "Split Maintenance" responsibility or jurisdiction do not appear in The Letter and are therefore not binding upon the parties to this litigation. Michael Blau, who served as the Village Manager for the Village of Mamaroneck from January, 1996 to October, 2001 testified that he never understood, nor was he aware of any agreements between the Village and the NYSTA and/or NYSDOT that the state entities had any maintenance or shared maintenance responsibility for The Bridge. At first, he believed that the NYSTA had that responsibility, but after he called them regarding repair work, he was told that the Thruway Authority had no such maintenance responsibilities.

The local municipalities argue that the division of maintenance and repair functions set forth in the first and second paragraphs of The Letter constitutes an agreement between the state entities and the local municipalities for shared maintenance which binds NYSDOT and NYSTA to maintain the responsibility for the superstructure and substructure of The Bridge. The language in The Letter is clear and unambiguous, its plain meaning is that after the construction of The Bridge was completed and accepted, NYSDPW delegated back to the local municipalities only the specific responsibilities listed in the second paragraph, and retained the responsibilities to maintain and repair the superstructure and substructure of The Bridge. In contract terms, the offer set forth by the state entities in The Letter was as follows, the state entities would remain responsible for the superstructure and substructure of The Bridge, and would delegate to the local municipalities the responsibility for the roadway repairs and maintenance as set forth in paragraph 2 of The Letter. This offer was accepted by the local municipalities overtly or impliedly by their conduct in performing the delegated responsibilities for more than forty-five (45) years. [*5]

Since December 26, 1959, the local Municipalities have performed only the types of repairs and maintenance specified as their responsibility in the Letter. These include snow removal, removal of leaves and debris from the roadway, sidewalk and those areas surrounding the Bridge abutments, painting and repainting markings on the roadway, repairing pot holes, patching sidewalk cracks, and the repair of a guide rail along the edge of the sidewalk which had become dislodged as a result of an accident. The local municipalities have not been requested by the state entities to perform nor have they performed any repairs to or maintenance of the superstructure of substructure of The Bridge. No evidence of the necessity to date for any repair or maintenance of the superstructure or substructure of The Bridge was introduced at the trial.

As a result of the statutory mandate set forth in Highway Law § 231 NYSDOT is required to perform bi-annual safety inspections of The Bridge. The inspections have taken place every two (2) years since 1991. As a result of these inspections, three flagged bridge reports were issued by NYSDOT to the local municipalities for mandatory repairs to safety related conditions which had developed on The Bridge. They were issued in 1996 to Rye Town for a guide or bridge rail dislodged as the result of an accident , in 1997 to Mamaroneck Village for a pitched up slab in the sidewalk which created a tripping hazard to the public on the approach to The Bridge, and in 1999 for a pothole that had developed on the road surface of The Bridge. The correction of each of these conditions was accomplished by the local municipalities. For a bridge to be under NYSDOT maintenance and repair jurisdiction, the feature carried by the bridge or the feature crossed by the bridge would be a state highway. The feature crossed of the inspection report states "Mamaroneck River". On the inspection reports for The Bridge, there is no state highway number. The lack of a state highway number indicates that the bridge is not part of a state highway. The feature carried by The Bridge is the North Barry Avenue Extension, which is a local roadway and not a state highway.

The local municipalities additionally argue that the contents of the Identification Plate establish that the state entities asserted jurisdiction over The Bridge during construction which clearly indicates that the Bridge was built as part of the construction of the New England section of the New York State Thruway. It acts as further proof of their separate responsibility for the bridge.

The state entities argue that even if the Court concludes that they had separate responsibility for the Bridge, independent of NYSDPW's role in constructing The Bridge, by operation of law, reverted to local control.

Highway Law § 233 (12) provides: Whenever in the construction, reconstruction or improvement of a state highway it is found advisable to change the course of a stream channel so that it will not cross and re-cross the highway but will cross any public road, highway or street, the commissioner of transportation may include in the highway construction or [*6]reconstruction or improvement contract plans for the construction of a bridge or culvert and necessary approaches thereto over said changed course of the stream channel .... After completion and acceptance of such bridge or culvert, the cost of the maintenance thereof shall be under the authority of the agency having jurisdiction over the public road, highway or street upon which such bridge or culvert is located.

Since the course of the Mamaroneck River was altered as part of the construction project at issue, pursuant to §233 (12), maintenance responsibilities for The Bridge reverted to local control (i.e. the local municipalities having responsibility for the street upon which it is located) upon completion of the project.

CONCLUSIONS OF LAW

There was no testimony that any party considered The Letter to be a shared maintenance agreement prior to the instant litigation. An examination of the plain language of The Letter shows that it served to notify the local municipalities of their maintenance responsibilities pursuant to statute. Unlike the Chatsworth Avenue Bridge reversion letter the NYSTA did not specifically commit to undertake structural repair responsibilities or any other maintenance responsibilities for that matter. An examination of the text of the Letter in no way leads to the conclusion that it is a shared maintenance agreement.

The Bridge is part of a local highway, and not part of the Thruway or of the state highway system. The Bridge is not necessary for Thruway purposes as set forth in Public Authorities Law § 353 and § 354. It is part of a relocated local highway over a relocated stream channel and replaces a local bridge. The Identification Plate does not evidence current ownership or a continuing maintenance responsibility by the NYSTA or NYSDOT.

Both Public Authorities Law § 359(4) and Highway Law § 233 (12) provide for reversion of relocated local roadways upon completion of the work. Pursuant to Highway Law § 237, Towns are liable for the repair of bridges within their bounds. Villages may be liable pursuant to Village Law § 6-604, if they have assumed responsibility or if there is an agreement. After the original contract work, all bridge maintenance has been performed by the Village of Mamaroneck or the Town of Rye.

There is no evidence of any Agreement between the state entities and the local municipalities modifying their respective statutory highway and bridge maintenance responsibilities. The performance by the local municipalities of their maintenance responsibilities did not constitute an overt or implied acceptance by course of conduct of an offer by the state entities for a shared maintenance responsibility with regard to The Bridge. Nor is such established by the doctrine of equitable estoppel.

[*7]

VERDICT

The Court finds that the Local Municipalities are solely responsible for maintaining and repairing the superstructure and substructure of the North Barry Avenue Extension Bridge.

This shall constitute the Opinion, Decision, and Judgement of the Court.

Dated: White Plains, New York

December 22 , 2005

S/

___________________________________

HON. JOHN R. LaCAVA, J.S.C.