IN RE: KEN MAR DEVELOPMENT (2008)

Appeal from a judgment of the Supreme Court (Nolan Jr., J.), entered May 16, 2007 in Saratoga County, which, among other things, partially granted petitioner's application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to compel respondents to remove certain impediments blocking petitioner's access to certain real property.

Petitioner owns property in the City of Saratoga Springs, Saratoga County, which was subdivided into four lots by resolution of the City's Planning Board in 1997.  Lots 1, 2 and 3 abut an improved street and have since been developed.  Access to lot 4, however, is solely by means of an unimproved “paper street.” ¹  The subdivision map approved by the City contains a note which provides that “[a]ccess to lot 4 will be across the undeveloped portion of Martin Avenue.  Construction and maintenance of this driveway will be the responsibility of the owner of lot 4. Construction of that portion of the driveway that is in the public right of way is subject to the approval of the Department of Public Works.”

Beginning in 2003, petitioner proceeded with the development of lot 4. A building permit was obtained in July 2006 and petitioner then began utilizing the paper street to access lot 4 “for the purposes of clearing, grading and excavating the area” where the approved building was to be constructed.

In August 2006, respondent Department of Public Works (hereinafter DPW), at the direction of respondent Thomas McTygue, the City's Commissioner of Public Works, parked a city-owned dump truck on the unimproved portion of Martin Avenue, thereby preventing access to and development of lot 4.² In response, petitioner commenced this combined proceeding pursuant to CPLR article 78 and action for declaratory judgment seeking, among other things, (1) to compel removal of the City's dump truck ³ and to prevent respondents from impeding access to and development of lot 4, and (2) declarations and damages pursuant to 42 USC § 1983 and the Equal Protection Clause of the N.Y. Constitution.  Respondents moved to, among other things, dismiss the complaint for failure to state a cause of action.  Supreme Court denied respondents' motion to dismiss and, reaching the merits of the CPLR article 78 proceeding, granted the petition and enjoined respondents from interfering with petitioner's right to use the paper street to access lot 4, including the construction of a driveway along the paper street.  Respondents now appeal.

 Turning first to the CPLR article 78 proceeding, we note that “[a]n owner of land adjoining a highway or street possesses, as an incident to such ownership, [an] easement[ ] ․ of access, from and over the highway in its entirety to every part of his or her land, regardless of whether the owner owns the fee of the highway or street itself” (Matter of Scoglio v. County of Suffolk, 85 N.Y.2d 709, 712, 628 N.Y.S.2d 230, 651 N.E.2d 1249 [1995] ), even when it is but a paper street (see Perlmutter v. Four Star Dev. Assoc., 38 A.D.3d 1139, 1140, 833 N.Y.S.2d 679 [2007];  see also Fiebelkorn v. Rogacki, 280 App.Div. 20, 21–22, 111 N.Y.S.2d 898 [1952], affd. 305 N.Y. 725, 112 N.E.2d 846 [1953] ).  Here, petitioner's use of the paper street to gain access to lot 4 in order to construct the approved duplex, as well as the eventual construction of a driveway, is consistent with the purpose of such street (see Perlmutter v. Four Star Dev. Assoc., 38 A.D.3d at 1141, 833 N.Y.S.2d 679;  Village of Baxter Estates v. G.N.M. Constr. Co., 49 Misc.2d 333, 334, 267 N.Y.S.2d 663 [1966] ).  Nonetheless, a reading of note 2 of the subdivision map, together with the minutes of the January 15, 1997 meeting of the City Planning Board, demonstrates petitioner's consent to DPW's authority to approve the construction of a driveway on the paper street and, hence, to impose reasonable requirements relative thereto.  Although petitioner alleges that the efforts of its principals to approach McTygue on several occasions regarding the specifications required for the construction of the driveway were completely rebuffed, there is no record evidence that any specific applications or proposals were submitted and denied.  Furthermore, questions of fact exist as to whether any further alteration of the land is necessary to enable petitioner to traverse the paper street with construction vehicles without constructing a driveway.

 Thus, we find that respondents' blanket imposition of impediments to petitioner's use of the paper street to access its land was arbitrary and capricious and we agree with Supreme Court's determination that petitioner was entitled to judgment on its CPLR article 78 petition to the extent of enjoining respondents from interfering with such access.  However, we disagree with Supreme Court's finding, on this record, that petitioner has an unrestricted right to construct a driveway on the paper street or to otherwise improve such street, as any determination with respect to the reasonableness of respondents' actions in this regard is premature.⁴

 We next address respondents' claim that petitioner has failed to state causes of action sounding in constitutional violations.  First, we find sufficient allegations to support municipal liability under 42 USC § 1983.  The complaint, as supplemented by the affidavits of petitioner's president (see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 [2007];  Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ), alleges the existence of an official policy that subjected petitioner to the denial of a constitutional right (see Zahra v. Town of Southold, 48 F.3d 674, 685 [2d Cir.1995];  Town of Orangetown v. Magee, 88 N.Y.2d 41, 48–49, 643 N.Y.S.2d 21, 665 N.E.2d 1061 [1996];  Weimer v. City of Johnstown, 249 A.D.2d 608, 609, 670 N.Y.S.2d 624 [1998], lv. denied 92 N.Y.2d 806, 677 N.Y.S.2d 781, 700 N.E.2d 320 [1998];  Howe v. Village of Trumansburg, 199 A.D.2d 749, 751, 605 N.Y.S.2d 466 [1993], lv. denied 83 N.Y.2d 753, 612 N.Y.S.2d 107, 634 N.E.2d 603 [1994];  see generally 42 USC § 1983;  Monell v. Dept. of Social Servs., 436 U.S. 658, 690–695, 98 S.Ct. 2018, 56 L.Ed.2d 611 [1978] ).  Specifically, there are allegations that McTygue had final policymaking authority in at least some of the areas of governmental function associated with petitioner's development of lot 4. Accordingly, we find that petitioner adequately alleged both that McTygue was one “whose edicts or acts may fairly be said to represent official policy” and that the acts of the DPW at McTygue's direction could reasonably be viewed as manifestations of official policy such that municipal liability under 42 USC § 1983 may lie (Monell v. Dept. of Social Servs., 436 U.S. at 694, 98 S.Ct. 2018;  see generally City of St. Louis v. Praprotnik, 485 U.S. 112, 121–126, 108 S.Ct. 915, 99 L.Ed.2d 107 [1988];  Pembaur v. City of Cincinnati, 475 U.S. 469, 479–484, 106 S.Ct. 1292, 89 L.Ed.2d 452 [1986] ).

 Turning next to petitioner's specific federal constitutional claims, petitioner asserts three claims pursuant to 42 USC § 1983 premised, respectively, upon an equal protection violation, a substantive due process violation and a taking without just compensation.  First, we find that petitioner's takings claim pursuant to the Fifth Amendment of the U.S. Constitution is premature.  Petitioner has not presented any allegation or proof that compensation has been sought for its property and, therefore, its takings claim is not ripe for review and should be dismissed (see Williamson County Regional Planning Commn. v. Hamilton Bank of Johnson City, 473 U.S. 172, 194–197, 105 S.Ct. 3108, 87 L.Ed.2d 126 [1985];  Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 379–380 [2d Cir.1995], cert. denied 519 U.S. 808, 117 S.Ct. 50, 136 L.Ed.2d 14 [1996] ).

 Addressing, next, petitioner's equal protection claim, we note that an equal protection violation based upon selective enforcement “arises where first, a person (compared with others similarly situated) is selectively treated and second, such treatment is based on impermissible considerations such as ․ intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person” (Bower Assoc. v. Town of Pleasant Val., 2 N.Y.3d 617, 631, 781 N.Y.S.2d 240, 814 N.E.2d 410 [2004];  see Matter of Northway 11 Communities v. Town Bd. of Town of Malta, 300 A.D.2d 786, 788, 751 N.Y.S.2d 658 [2002];  Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 [2d Cir.2007];  Zahra v. Town of Southold, 48 F.3d at 683–684).  Here, petitioner has not shown that it is similarly situated with those whose street access permits were granted.  Thus, we find that petitioner has failed to state a legally cognizable federal equal protection claim.

 With respect to its substantive due process claim, petitioner must allege (1) the deprivation of a protectable property interest and (2) that “the governmental action was wholly without legal justification” (Bower Assoc. v. Town of Pleasant Val., 2 N.Y.3d at 627, 781 N.Y.S.2d 240, 814 N.E.2d 410;  see Town of Orangetown v. Magee, 88 N.Y.2d at 53, 643 N.Y.S.2d 21, 665 N.E.2d 1061).  Considering that petitioner had obtained a valid building permit, and in view of our conclusion that respondents' interference with petitioner's access to lot 4 was improper, we find that petitioner has sufficiently pleaded “ ‘a legitimate claim of entitlement’ to continue construction” (Town of Orangetown v. Magee, 88 N.Y.2d at 52, 643 N.Y.S.2d 21, 665 N.E.2d 1061, quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 [1972];  accord Bower Assoc. v. Town of Pleasant Val., 2 N.Y.3d at 627, 781 N.Y.S.2d 240, 814 N.E.2d 410;  see Villager Pond, Inc. v. Town of Darien, 56 F.3d at 379).  In addition, petitioner has alleged that it has expended substantial sums to vest its interest.  Consequently, we find that petitioner's property interest is sufficient to sustain a viable substantive due process claim.  We also find that petitioner has sufficiently pleaded a lack of legal justification for respondents' actions.  In fact, there is some evidence that, among other things, McTygue, together with the Deputy Commissioner of Public Works (McTygue's brother), had unilaterally decided to prevent development of lot 4, regardless of the Planning Board's approval of a building permit.

We agree with respondents' contention that petitioner's cause of action asserting a violation of the Equal Protection Clause of the N.Y. Constitution (see N.Y. Const., art. I, § 11) should have been dismissed.  In our view, the injunctive and declaratory relief available to petitioner pursuant to CPLR article 78 provides an adequate alternative remedy, rendering the recognition of a constitutional tort unnecessary “to effectuate the purposes of the State constitutional protections [petitioner] invokes” (Martinez v. City of Schenectady, 97 N.Y.2d 78, 83, 735 N.Y.S.2d 868, 761 N.E.2d 560 [2001];  see Waxter v. State of New York, 33 A.D.3d 1180, 1181–1182, 826 N.Y.S.2d 753 [2006];  Bullard v. State of New York, 307 A.D.2d 676, 678–679, 763 N.Y.S.2d 371 [2003] ).

 Finally, we also agree with respondents that petitioner's punitive damages claims against the municipal respondents should have been dismissed, as no claim for punitive damages lies against a governmental entity (see City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 266–270, 101 S.Ct. 2748, 69 L.Ed.2d 616 [1981];  Sharapata v. Town of Islip, 56 N.Y.2d 332, 338–339, 452 N.Y.S.2d 347, 437 N.E.2d 1104 [1982];  Miller v. City of Rensselaer, 94 A.D.2d 862, 862, 463 N.Y.S.2d 589 [1983] ).  However, to the extent that petitioner asserts a claim for such damages against McTygue, individually, a viable punitive damages claim has been stated (see City of Newport v. Fact Concerts, Inc., 453 U.S. at 269–270, 101 S.Ct. 2748;  Sharapata v. Town of Islip, 56 N.Y.2d at 338–339, 452 N.Y.S.2d 347, 437 N.E.2d 1104;  Miller v. City of Rensselaer, 94 A.D.2d at 862–863, 463 N.Y.S.2d 589;  compare Ivani Contracting Corp. v. City of New York, 103 F.3d 257, 262 [2d Cir.1997], cert. denied 520 U.S. 1211, 117 S.Ct. 1695, 137 L.Ed.2d 821 [1997];  see generally General Municipal Law § 50–k[3];  Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 [1983] ).

Respondents' remaining contentions have been examined and found to be without merit.

ORDERED that the judgment is modified, on the law, without costs, (1) by reversing so much thereof as granted that part of the first cause of action of the petition giving petitioner an unrestricted right to construct a driveway on the paper street and (2) by dismissing the causes of action (a) asserting a taking without just compensation under the U.S. Constitution, (b) asserting a violation of the Equal Protection Clause of the N.Y. Constitution and U.S. Constitution and (c) seeking punitive damages against respondent Department of Public Works of the City of Saratoga Springs, respondent City of Saratoga Springs and respondent Thomas McTygue in his capacity as Commissioner of Public Works;  matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision;  and, as so modified, affirmed.

FOOTNOTES

1.   The unimproved portion of Martin Avenue ends where it abuts lot 4 and, traveling along the paper street from lot 4, the next intersecting street is the intersection of the improved portion of Martin Avenue with Bingham Street.

2.   Respondents allege that the placement of the dump truck was in response to petitioner's removal of considerable amounts of trees, brush and grass from the paper street.  However, according to petitioner, the paper street had been cleared since 2003 and petitioner's present intent is simply to traverse it—in its current condition—with construction equipment and/or other vehicles.

3.   While the dump truck has since been removed, petitioner's access to lot 4 along the paper street has been limited by the City to foot traffic.  Furthermore, it is evident from the record that McTygue intends to prevent petitioner from developing lot 4—and, therefore, from accessing that property for such purpose—under any circumstances.

4.   However, we note that respondents appear to concede that a street opening permit is not necessary at this time.  We also note, as did Supreme Court, the absence of any evidence of the City's alleged ownership of the land on which the paper street is situated.

STEIN, J.

SPAIN, J.P., LAHTINEN, KANE and MALONE JR., JJ., concur.