ANTHONY KEMPA PLAINTIFF RESPONDENT v. TOWN OF BOSTON DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff owns land adjacent to a town highway known as Eddy Road in defendant, Town of Boston (hereafter, Town).   In 2007, plaintiff commenced this action asserting claims for trespass, negligence, and the violation of RPAPL 861, alleging that the Town entered his land without permission and damaged his property by, inter alia, cutting down trees and removing soil both inside and outside the Town's right-of-way on Eddy Road. Supreme Court initially granted the Town's motion for summary judgment dismissing the complaint without prejudice, allowing plaintiff to submit an updated survey regarding the width of Eddy Road. Plaintiff did so, and the court then denied the Town's motion.   We affirm.

As the Court of Appeals wrote in Schillawski v. State of New York (9 N.Y.2d 235) with respect to determining the width of a highway, “[w]here a road has obtained its character as a public highway by user, its width is determined by the width of the improvement ․ But where the road has been laid out under a statute, it is the statute and not the user that determines the width” (id. at 238;  see Matter of Hill v. Town of Horicon, 176 A.D.2d 1169, 1170, lv denied 80 N.Y.2d 752;  Snow v. State of New York, 48 A.D.2d 582, 584-585).   The Town failed to identify a statute “laying out” Eddy Road (see Snow, 48 A.D.2d at 585;  Kenyon v. State of New York, 28 A.D.2d 1182, 1182-1183), and thus was required in support of its motion for summary judgment to establish the width of the highway by use (see Schillawski, 9 N.Y.2d at 238;  Snow, 48 A.D.2d at 585).   The Town submitted evidence establishing that Eddy Road is 66 feet in width by use adjacent to plaintiff's property and that the work performed by the Town was completed within a 66-foot-wide right-of-way.   The Town therefore met its initial burden on the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).

In opposition to the motion for summary judgment, however, upon receiving the court's permission to submit an updated survey, plaintiff submitted an affidavit and survey of a professional land surveyor who concluded that Eddy Road is 49.5 feet in width adjacent to plaintiff's property.   The Town's contention that the court erred in allowing plaintiff to submit the surveyor's affidavit and survey after granting the Town's motion for summary judgment without prejudice is advanced for the first time on appeal and therefore is not properly before this Court (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985).   Contrary to the Town's further contention, the subject survey is admissible (see generally Raab v. Lefkowitz, 76 AD3d 619;  Sloninski v. Weston, 232 A.D.2d 913, 914, lv denied 89 N.Y.2d 809, rearg. denied 89 N.Y.2d 1086;  Town of Ulster v. Massa, 144 A.D.2d 726, 728, lv denied 75 N.Y.2d 707).

Even assuming, arguendo, that the court erred in considering the additional evidence submitted by plaintiff, we note that in his initial opposition to the motion plaintiff submitted his deed, which indicates that Eddy Road is 49.5 feet in width and does not provide for easement rights beyond that width.   Plaintiff also initially submitted evidence showing tree and soil removal by the Town that extended beyond a width of 49.5 feet.   Plaintiff therefore established the existence of triable issues of fact regarding his trespass, negligence, and RPAPL 861 claims against the Town (see Ketchuck v. Town of Owego, 72 AD3d 1173;  Curtis v. Town of Galway, 24 Misc.3d 1240[A], 2007 N.Y. Slip Op 52624[U], *4, affd 50 AD3d 1370;  Jung v. Town of Franklinville, 299 A.D.2d 904, 905;  Fletcher v. Town of Indian Lake, 73 A.D.2d 783).   Consequently, the court did not err in denying the Town's motion for summary judgment dismissing the complaint.

We have considered the Town's remaining contentions and conclude that they are without merit.

Patricia L. Morgan

Clerk of the Court