Curtis v Town of Galway

[*1] Curtis v Town of Galway 2007 NY Slip Op 52624(U) [24 Misc 3d 1240(A)] Decided on May 22, 2007 Supreme Court, Saratoga County Nolan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2007
Supreme Court, Saratoga County

Jay S. Curtis, KENDRA B. CURTIS, REED G. HAGELIN and BARBARA D. BRADY-HAGELIN, Plaintiffs,

against

The Town of Galway and CHARLES W. HANSEN, as the Superintendent of Highway for the Town of Galway, Defendants.



2005-2730



APPEARANCES:THE AYERS LAW FIRM, PLLC

Attorneys for Plaintiffs

P.O. Box 683

50 West Grand Street

Palatine Bridge, New York 13428

HORIGAN, HORIGAN, LOMBARDO & KELLY, P.C.

Attorneys for Defendants

49 East Main Street

P.O. Box 520

Amsterdam, New York 12010

Thomas D. Nolan, J.

In this action, the plaintiffs, Jay S. Curtis and Kendra B. Curtis (collectively Curtis) and Reed G. Hagelin and Barbara D. Brady-Hagelin (collectively Hagelin) seek judgment declaring abandoned under Highway Law § 205 an approximate one mile section of West Galway Road based on non-use and lack of maintenance, declaring plaintiffs fee owners of such former road, and permanently enjoining the Town of Galway (Town) from entering upon said former road and awarding money damages based upon alleged trespasses onto their respective properties by the Town and for additional compensatory and treble damages under RPAPL 861 caused by the Town's alleged destruction and removal of trees and timber from their properties.

The section of West Galway Road involved in this proceeding, according the plaintiffs' complaint (para 23), runs between Consaul Road on the west and NYS Route 147 on the east. [*2]Curtis owns approximately 183 acres of land, acquired in 1996 and 2000, on the north and south sides of the westerly section of the disputed road, and Hagelin owns approximately 87 acres of land, acquired in 2002, on north and south sides of the easterly section of the disputed road. Together the holdings of plaintiffs account for the entire frontage on both sides of this section of West Galway Road.

Plaintiffs contend that the road, except for the most westerly 1200 feet which the Curtises use for access to their house and most easterly 100 feet which the Hagelins use for access to their house, was abandoned based upon non-use by the public and non-maintenance by the Town for at least six years prior to 1973. The Town asserts that it has been a road by use since the 1860's and has not been abandoned. The Town also asserts that it has maintained it as reasonably necessary for a seasonal dirt farm/country road and that it has remained open and been regularly used by the general public. Curtis counters that during their ownership dating back to 1996 only they and their families and those to whom they had granted express permission have used this one mile stretch of West Galway Road and that the road, until June 2005, had not been maintained by the Town.

In June 2005, plaintiffs also contend that the Town, over their protests that the road had been abandoned, began trimming and cutting trees and removing brush along the disputed section of road and that in October and November 2005, the Town replaced a culvert and removed a beaver dam adjacent to the road and graded and filled the roadbed with dirt and gravel and that such actions constituted trespasses.

During discovery, in his deposition, defendant Charles Hansen (Hansen), the Town's Highway Superintendent between January 1994 and February 2006 and before that tenure, a ten year member of the Town Board, disputed plaintiffs' assertion that the road had not been regularly maintained or used. Though acknowledging when he first inspected it in 1994 the road was in "terrible" condition, Hansen testified that a car could still drive "over the [disputed section of road]". Hansen further testified that in 1995 or 1996 the Town replaced a culvert in the vicinity of a beaver dam located next to the disputed section of road and that sometime between 1996 and 2001, after plaintiff Jay Curtis had made "a mess" of another section of the disputed road which bisected his property when he attempted to "grade" it, the Town removed mud and dirt and placed gravel to repair that damaged section and also, acting on Curtis's complaint that the road was blocked by fallen trees, the Town removed seven trees and again regraded a section of the road. Hansen further testified that the Town, after being notified by defendant's Hagelin's predecessor in title, that two fallen trees were blocking the road in the section that his property bordered, the Town removed the trees and reopened the road. Hansen testified that during his tenure, the Town regularly removed construction type debris and tires which had been dumped on or along the road. In 2001, Hansen posted the road as a "seasonal limited use highway", meaning that the Town would not plow snow from the road, but it otherwise was maintained and open to public use.

The Town, relying on deposition testimony of the four plaintiffs and Hansen, the pleadings, photographs taken in 2005 and 2006, and certain Town records including a 1963 Town Board resolution listing West Galway Road as part of the Town's official highway system, moves for summary judgment dismissing plaintiff's complaint on the principal ground that plaintiffs lack evidence establishing abandonment under Highway Law § 205 (1), and as well, [*3]dismissing the trespass claims on the ground that plaintiffs' have failed to produce evidence that the Town performed work outside the highway right-of-way or alternatively, on the ground that they sustained no measurable damages due to the Town's activities.

In opposition, plaintiffs first contend that the Town has failed to meet its threshold burden to demonstrate the absence of material triable issues of fact whether the road had been regularly used and maintained, and second that the motion was made prematurely, that is, before plaintiffs could depose certain nonparty witnesses who, plaintiffs claim, would give evidence establishing abandonment. Alternatively, if the merits were reached, plaintiffs contend that there are material issues of fact whether West Galway Road had been abandoned and whether the Town's activities of 2005-2006 constituted trespasses onto and damaged plaintiffs' lands. Plaintiffs additionally assert in opposition to this motion, a new claim, not alleged in their complaint, that West Galway Road had never became a Town road by use in the first place.

Initially, to defeat a summary judgment motion on the ground that its opponent requires additional discovery, the opponent must show under CPLR 3212 (f) that proof of essential opposing facts are unavailable to the nonmoving party and that the opponent ought to be afforded a chance to uncover that proof. Yet, mere hope, speculation, or conjecture do not suffice to support that claim; the proponent of delay must make an evidentiary showing what salient facts are likely to be revealed. Firth v State of New York, 287 AD2d 771, 773 (3rd Dept 2001), affd on other grounds 98 NY2d 365 (2002); Frouws v Campbell Founding Co., 275 AD2d 761 (2nd Dept 2000). Here, plaintiffs claim that 11 nonparty witnesses have relevant information and that they wish to depose them, but they do not relate why they could not secure, in lieu of taking depositions, affidavits from them which would support their case or establish at least an issue of fact. The court therefore will pass to the merits of defendants' motion.

"To obtain summary judgment the [movant] must meet a high threshold: there must be only one conclusion that can be drawn from the undisputed facts...." (Sanchez v State of New York, 99 NY2d 247, 254 (2002). "The court's role on a motion for summary judgment is to determine whether there is a material factual issue to be tried, not to resolve it." (Sommer v Federal Signal Corp., 79 NY2d 540, 554 (1992). That burden, if met, shifts the onus to the party opposing summary judgment "to come forward with competent evidence raising a material question of fact". Bombardier Capital v Reserve Capital Corp., 295 AD2d 793, 794 (3rd Dept 2002). Evidence, not speculation or supposition, is needed to demonstrate a triable issue. Vogel v Dunn, 276 AD2d 977, 979 (3rd Dept 2000). The facts must be viewed in the light most favorable to the party opposing summary judgment, here the plaintiffs. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 37 (2004); Czarnecki v Welch, 13 AD3d 952 (3rd Dept 2004). Yet, in so doing, the court need not "ferret out speculative issues to get the case to the jury'". Andre v Pomeroy, 35 NY2d 361, 364 (1974). Nor may the court assess credibility when conflicting versions are presented " unless it clearly appears that the issues are not genuine but feigned'". Rifenburgh v Wilczek, 294 AD2d 653, 655 (3rd Dept 2002); quoting Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441 (1968).

First, some general principles governing abandonment. "Once a road becomes a public highway, it remains such until the contrary is shown," Matter of Flacke v Strack, 98 AD2d 881, 882 (3rd Dept 1983), "The burden of establishing abandonment of a highway is on the party claiming that the abandonment has occurred." Matter of Aldous v Town of Lake Luzerne, 281 [*4]AD2d 807, 808-809 (3rd Dept 2001). There is also a presumption favoring continuance. Matter of Smigel v Town of Rensselaerville, 283 AD2d 863, 864 (3rd Dept 2001). Abandonment by operation of law is established under Highway Law § 205 (1)[FN1] when "the road has been impassable by vehicles, [and] that no public work or maintenance has been performed on the road". Abess v Rowland, 13 AD3d 790, 792 (3rd Dept 2004) with the caveat that "occasional limited use will not defeat a finding of abandonment". Abess, supra at 792 [Proof showed individuals attempted to walk or bike on the road only 15 times]. Yet, a town's failure to maintain a road will not, standing alone, support the conclusion that a road has been abandoned. DeCuyper v Gonzales, 214 AD2d 764 (3rd Dept 1995); Matter of VanAken v Town of Roxbury, 211 AD2d 863 (3rd Dept 1995), lv denied 85 NY2d 812 (1995) [Town did not maintain road for over 30 years]; Hewitt v Town of Scipio, 32 AD2d 734 (4th Dept 1969), affd 26 NY2d 934 (1970). The dispositive issue is thus non-use and generally that is a factual determination. Matter of Smigel, supra at 864.

The plaintiffs' burden of proof of abandonment applicable at trial is shifted on this motion. Here, on this motion, the Town must show that there is "an absence of evidence to support the [plaintiffs'] case", Tibbits v Verizon New York, Inc.,AD3d(3rd Dept, May 17, 2007), quoting Celotex Corp. v Catrett, 477 U.S. 317, 325 (1986), with a prima facie showing that the disputed section of West Galway Road was regularly traveled and used. If the Town meets that burden, the burden would shift to plaintiffs, to avoid nonsuit on the abandonment issue, to produce evidence sufficient to demonstrate an issue of fact regarding non-use for at least six consecutive years.

The Town meets its initial burden. First, plaintiff Jay Curtis, conceding regular though limited public use, testified at his deposition that as far back as 1992, vehicles were driven on the road and that these vehicles were not all operated by members of his family or his guests [Deposition, pages 26, 32-34, Exhibit J to the Town's Notice of Motion]. Moreover, defendant Reed Hagelin in a letter sent to the Town Board in October 2003 also acknowledged that the road had been regularly used,[FN2] though the purpose of that letter was to convince the Town Board that the road's condition made it unsafe for public use and that the public users were dumping debris there and committing other offensive and noxious behavior. Moreover, Hansen's deposition testimony attests to regular use of the disputed road during his tenure as the Town Highway Superintendent. And the photographs, though taken in 2005 and 2006 during and after the Town worked on the road, depict a well-defined dirt road wide enough to accommodate through travel [*5]by vehicles and easily distinguishable from the farm fields, marsh areas, and remnants of stone walls bordering on its northerly and southerly margins.

Thus, there passed to plaintiffs the burden to lay bare their proof to demonstrate a triable issue or suffer nonsuit on their abandonment claims. In their attempt to do so, three of the plaintiffs, Jay Curtis, Kendra Curtis, and Reed Hagelin, in their opposing affidavits, purport to clarify their deposition testimony regarding the use, i.e., that such use was limited to family members or to persons to whom express permission had been granted. Generally, to avoid summary judgment, a party may try only in vain to create questions of fact by contradicting his or her earlier deposition testimony. Daisernia v Thomas, 12 AD3d 998, 999 (3rd Dept 2004). Even if the court were to accept the content of these "clarifying" affidavits, the plaintiffs' prior admissions at depositions do not demonstrate a triable issue whether the disputed section of West Galway Road had not been used by the public for a minimum period of six consecutive years.

One additional issue requires some comment. In plaintiffs' memorandum of law (Point II), an argument, not advanced in their complaint, and for the first time raised, is that the disputed section of West Galway Road had never been a user road to begin with. Though parties may advance inconsistent theories and are not bound by allegations only made upon information and belief, Scolite International Corp. v Vincent J. Smith, Inc., 68 AD2d 417, 421 (3rd Dept 1979); Jones v Davis, 307 AD2d 494, 498 (3rd Dept 2003), lv dismissed 1 NY3d 566 (2003), absent a motion to amend it, the plaintiffs' complaint ought to be considered as it now reads, and it does not state an alternative claim that the road never was a public road. Moreover, plaintiffs have not offered sufficient evidence which would factually support an amendment to the complaint to add a claim that West Galway Road was never a user road.

The Town is entitled to summary judgment dismissing plaintiffs' first and second causes of action and its motion is granted to that extent, without costs.

Next, plaintiffs' causes of action three through six alleging damages from trespass and under RPAPL 861. Since this portion of West Galway Road became a public highway by use, "its width is determined by the width of the improvement", Schillawski v State of New York, 9 NY2d 235, 238 (1961); Bovee v State of New York, 28 AD2d 1165 (3rd Dept 1967), or stated another way, "a highway easement created by use is as wide as the actual use for purposes of public travel". Dutcher v Town of Shandaken, 23 AD3d 781, 782 (3rd Dept 2005). Yet, the Town, under Highway Law § § 140 (5) and 147, can enter upon adjacent lands to perform limited necessary maintenance on culverts, to open existing ditches or drains and to dig new ditches or drains subject, of course, to paying to the owners of such land, any damages caused to the property entered upon. Highway Law § 148. Jung v Town of Franklinville, 299 AD2d 904 (4th Dept 2002); but see Brown v Town of Pitcairn, 4 Misc 3d 1029A (Sup Ct, St. Lawrence County) [Court held that under Highway Law § 189 Legislature intended that a road by user could be maintained to a width of three rods]. Plaintiffs successfully demonstrate the existence of an issue of fact whether the Town, in its activities in 2005 and 2006, may have unnecessarily caused physical damage to plaintiffs' land and trees beyond the travelled way. see Jung v Town of Franklinville, supra [Plaintiffs' testimony created issue of fact whether Town extended drainage ditches and culverts into their property].

Defendant's Town's motion seeking dismissal of plaintiffs' causes of action three through six is denied, without costs. [*6]

One final matter. While this summary judgment motion was before the court, the Town moved by order to show cause to modify the court's order dated December 27, 2005, which was based on the parties' stipulation and which, in its present state, bars the Town from engaging in "any site work, excavating, grading, filling, ditching, resurfacing or other construction, reconstruction or improvement activities" on the disputed portion of West Galway Road "during the pendency of the...action, including any appeals" (emphasis added). The Town's current Highway Superintendent avers that a portion of the disputed West Galway Road was "washed away" as a result of a rainstorm and water runoff which have made the road dangerous and impassable. The Town seeks to modify that stipulated order to allow limited access to repair the "wash out", to open the road, and to make it passable to the public. Plaintiffs oppose the motion on the ground that there is no compelling need to repair the road while the issue of abandonment is sub judice. That argument, at least, is now moot at this level. Yet plaintiffs may elect to appeal the dismissal of plaintiffs' first and second causes of action. The stipulated order by its terms remains in effect at least until the time for appeal has passed. Nonetheless, the motion is granted, without costs, and the order is modified to allow only the "washed out" section to be repaired and to remedy any dangerous condition.

This memorandum shall constitute both the decision and the order of the court. All papers, including this decision and order, are being returned to the Town's counsel. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.

So Ordered.

DATED: May 22, 2007

Ballston Spa, New York

Hon. Thomas D. Nolan, Jr.

Supreme Court Justice Footnotes

Footnote 1: Every highway that shall not have been opened and worked within six years from the time it shall have been dedicated to the use of the public, or laid out, shall cease to be a highway; *** and every highway that shall not have been traveled or use as a public highway for six years, shall cease to be a highway, and every public right of way that shall not have been used for said period shall be deemed abandoned as a right-of-way.

Footnote 2:"Short of placing a police officer at each end of the road 24 hours a day, there is little you [the Town Board] can do to stop the problem as outlined given the one, two or three vehicles a day that use the street." (emphasis added). Excerpt from letter of Reed Hagelin, dated October 12, 2003 annexed as Exhibit H to the Town's Notice of Motion.