Morrison v Catlin

[*1] Morrison v Catlin 2008 NY Slip Op 50466(U) [19 Misc 3d 1101(A)] Decided on March 11, 2008 Supreme Court, Essex County Dawson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2008
Supreme Court, Essex County

Arthur P. Morrison as The Highway Superintendent for the Town of Ticonderoga, Petitioner,

against

Dan E. Catlin, Respondent.



119-08



FitzGerald Morris Baker Firth P.C., Glens Falls (William A. Scott of counsel), for Petitioner.

Darrell W. Harp, Clifton Park, for Respondent.

James P. Dawson, J.

The Court is asked to resolve the Petitioner's motion for an order requiring the Respondent to remove all fences and other obstructions on an alleged public highway in the Town of Ticonderoga, Essex County, as well as a cross-motion for summary judgment by the Respondent. A road alternately called Bull Rock Road and Lower Bullrock Road is a public highway in Ticonderoga. The pavement currently ends in a dead end on the Respondent's parcel. In 1943, a portion of the road beyond that dead end was qualifiedly abandoned pursuant to Highway Law § 205.

On January 10, 2008, the Petitioner issued an order to reopen that portion of road. The Respondent maintains a locked fence blocking access to the road beyond the dead end. The Petitioner then commenced this action or proceeding to force the Respondent to remove the obstructions to the road on February 8, 2008. The present motion by the Petitioner to force the Respondent to remove any obstacles to the road was brought by order to show cause on the same date.

The Respondent answered and brought counterclaims for various relief.[FN1] The first [*2]counterclaim seeks CPLR article 78 relief and alleges that the Petitioner lacks legal authority to lift the qualified abandonment certification absent certain conditions, including an application by the affected property owners. The second counterclaim seeks a declaratory judgment stating that the Petitioner is attempting to effect a taking outside of the procedure required by the Eminent Domain Procedure Law. The third counterclaim is pursuant to RPAPL article 15 and seeks a declaration that the highway ends at a point on the Respondent's property and does not traverse his entire parcel. The fourth and sixth counterclaims seek legal fees and expenses. The fifth counterclaim is one pursuant to CPLR article 78 and CPLR 3001 and seeks an order directing the Petitioner to refrain from taking steps against the Respondent's property without proper legal proceedings.

The Respondent and his brother both submit affidavits opposing the Petitioner's motion. They do not believe that the Respondent's parcel is included in the description of the qualifiedly abandoned highway. The Petitioner submits a reply affidavit addressing the Respondent's various claims as well as the affidavit of a land surveyor who opines that the Respondent's land was, in fact, traversed by the abandoned highway. The Petitioner submitted a sur-reply that is not permitted by CPLR 2214 and will not be considered.

The Petitioner's motion is denied and the Respondent's cross-motion is granted in part. Initially, the Respondent argues that the Petitioner lacks authority to bring the present action in his name and official capacity and raises that issue as his second affirmative defense (Respondent's Memorandum of Law, pg. 8). The Petitioner argues that he has revoked the qualified abandonment of a road over the Respondent's parcel. Assuming that were true, the Petitioner would need no court authorization to remove the fence. All the Petitioner must do is comply with the requirements of Highway Law § 190. This would imply that the burden lies on the Respondent to commence a proceeding to stop the Petitioner, not the reverse.

The only statutory source of any right the Petitioner may have to sue the Respondent is found in Highway Law § 140. That statute generally authorizes the Petitioner to bring an action against an individual who interferes with a town highway, but only empowers him to "[b]ring an action in the name of the town" (see Highway Law § 140 [13]). This language has been construed to mean precisely what it says that a highway superintendent must commence any action in the name of the town, not in his own name (see Town of Palatine v Canajoharie Water Supply Co., 90 App Div 548, 552 [1904], affd 184 NY 582 [1906]). The Petitioner has not done so, instead suing in his capacity [*3]as highway superintendent. Accordingly, Highway Law § 140 is unavailable to the Petitioner (see Matter of Murer v Butterfield, 122 Misc 2d 969, 975 [Sup Ct 1984]). There is no apparent legal authority that would permit the Petitioner to commence the present action against the Respondent.Even if the Petitioner could commence an action in his own name, however, another serious problem exists with the complaint. The Petitioner makes no effort to describe what the basis of his claim against the Respondent is, but it appears to be an attempt to resolve the dispute over what, if any, interest the Town has over the Respondent's parcel. That type of claim is addressed by RPAPL article 15. RPAPL 1501 does authorize a municipality to commence such an action, but only in instances where the property was obtained by it at a tax sale. Even if the Petitioner had sued the Respondent in the town's name, the town does not appear to have authority to commence such an action given the facts of this case. The complaint must be dismissed.

The Court takes no position on the second through fourth and sixth counterclaims against the Petitioner, as it appears that any motion for judgment on those claims is premature. There is no indication that the Petitioner has served a reply to the counterclaims or defaulted in responding. Accordingly, the Court is unaware of any procedural vehicle that would allow it to determine those counterclaims at this time.

The Court can resolve the first and fifth counterclaims, which seek relief pursuant to CPLR article 78 to which the Petitioner has replied. The first counterclaim asserts that the Petitioner lacks authority to issue an order revoking the qualified abandonment status of the road. In particular, the Respondent argues that the Petitioner acted pursuant to Highway Law § 171 (2), but that such action requires an application by all affected property owners. The Petitioner does agree that Highway Law § 171 (2) sets out the proper procedure for lifting a road's qualified abandonment status, but asserts that no application is required to lift that status (see 1977 Ops Atty Gen [Inf Ops] 273; 1913 Ops Atty Gen 14). Highway Law § 171 (2) states in relevant part that: Such town superintendent may also, upon written application and with the written consent of the town board, make an order laying out or altering a highway, or discontinuing a highway, which has become useless since it was laid out, upon filing and recording in the town clerk's office, with such application, consent and order, a release from all damages from the owners of lands taken or affected thereby, when the consideration for such release is agreed upon between such town superintendent, with the approval of the town board, and the owner or owners.

In interpreting a statute, a court should seek to effectuate legislative intent, and "[a]s the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). The plain meaning of the statute's language is clear a town superintendent may make an order regarding a highway, but only "upon written application." The Court also notes that "[i]t is a well-settled principle of statutory construction that a statute or ordinance must be construed as a whole and that its various sections must be considered together and with reference to each other" (People v Mobil Oil Corp., 48 [*4]NY2d 192, 199 [1979]; see McKinney's Cons Laws of NY, Book 1, Statutes § 97). Highway Law § 171 (1) allows the highway superintendent to lay out a town highway "either with or without a written application therefor." Given that the Legislature expressly allowed a highway to be laid out without a written application in Highway Law § 171 (1), the Court must conclude that its choice of language in Highway Law § 171 (2) was deliberate and that the provision can only be invoked where a written application has been made. Although it is not clear who is empowered to make a written application, it is undisputed that no one has actually made such an application. The Respondent is correct in asserting that the Petitioner exceeded his authority in revoking the qualified abandonment status of the road absent a written application, the first counterclaim is granted, and the order of January 10, 2008 is annulled.

The fifth counterclaim seeks prospective relief in the form of an order directing the Petitioner not to make any further attempts to interfere with the Respondent's property absent the unspecified "proper legal process." The only arguable ground for granting such relief under CPLR article 78 is a writ of prohibition, as the Respondent alleges that "the body or officer . . . is about to proceed without or in excess of jurisdiction" (CPLR 7803 [2]). The request could arguably be interpreted as one for an injunction as well. The Respondent is entitled to neither a writ of prohibition nor an injunction, as an adequate remedy at law exists in a CPLR article 78 proceeding to challenge any future illegal actions (see Matter of Camp Scatico v Columbia County Dept. of Health, 277 AD2d 689, 690 [2000]). The fifth counterclaim is dismissed.

The Court sees no reason to award sanctions at this time and declines to do so.

Ordered that the Petitioner's motion for an order directing the Respondent to remove various obstacles from a road is denied as moot; and it is further

Ordered and Adjudged that the Respondent's cross-motion is granted in part, the complaint is dismissed, the first counterclaim is granted and the determination of January 10, 2008 is annulled, although the fifth counterclaim is dismissed. Any relief requested which is not specifically granted herein is denied, and no motion costs are awarded to any party.

The original of this Decision and Order, together with the papers supplied, are returned to the Respondent's attorneys for filing and service with notice of entry. Those papers consist of the following: order to show cause dated February 8, 2008; affidavit of Arthur P. Morrison, sworn to February 8, 2008, with exhibits; summons and complaint dated February 7, 2008; notice of cross-motion dated February 19, 2008; third-party summons dated February 19, 2007 [sic]; answer and counterclaims with third-party complaint dated February 15, 2008; affidavit of Dan E. Catlin, sworn to February 15, 2008, with exhibits; affidavit of Leon Catlin, sworn to February 15, 2008; affirmation of William A. Scott dated March 4, 2008, with exhibit; affidavit of John Deming, sworn to March 4, 2008, with exhibit.

Decided:March 11, 2008

_____________________________________________

James P. Dawson, JSC

[*5] Footnotes

Footnote 1: The Respondent also commenced a third-party action against the Town of Ticonderoga. Although the notice of cross-motion does not seek any relief against the Town, the Defendant's affidavit does seem to request such relief. There is no indication that the Town has served a third-party answer, so a summary judgment motion is premature (see CPLR 3212 [a]). Nor is there any indication that the Town has defaulted in serving a third-party answer to entitle the Respondent to a default judgment on those claims (see CPLR 3215). To the extent the Respondent seeks relief pursuant to CPLR article 78, he fails to include a notice of petition or otherwise designate the return date of his petition (see CPLR 403 [a]; 7804 [a]). Assuming the Respondent sought to make the petition returnable on March 4, 2008, he failed to give the Town sufficient time to serve a reply, as his complaint is dated February 19, 2008 (see CPLR 7804 [c]). For the above reasons, any motion against the Town is at best premature and this decision will only address the counterclaims against the Petitioner.