LLC v. County of Erie, et al, Defendants. (2026)

In consideration of Plaintiffs' motion for summary judgment and Defendants' motion for summary judgment the Court considered all papers and exhibits filed in support of motion sequence number five (5) and number six (6). In addition, the Court considered all pleadings, exhibits, papers, and decisions previously filed and referred to in the instant motion papers.

FACTS

Violet Realty, Inc. and its wholly owned subsidiary Pearl Street Parking Associates LLC ("Plaintiffs"), hold property rights arising from a 1960s urban renewal project that created the Main Place Mall complex, an underground parking ramp, and an underground tunnel. The City of Buffalo, Erie County Savings Bank, ("the Bank") and Central Buffalo Project Corp., ("the Developer") entered into a three-party agreement (the "TPA") to construct a parking ramp beneath the Main Place Mall ("the Ramp") and an underground tunnel which runs from the eastern edge of Franklin Street under the Edward A. Rath County Office Building (the "Rath Building") (95 Franklin Street) and under Pearl Street, facilitating ingress and egress between Franklin Street and the Ramp. The Bank, pursuant to the TPA, reserved a permanent easement for Tunnel access when the Rath Building parcel was conveyed to Erie County in 1968. A license in perpetuity was subsequently granted to ensure continuous access under Pearl Street. Title records and a later title examination confirm that Plaintiffs now hold ownership of the Ramp, together with the Easement and License associated with the Tunnel. Their ownership of the easement was also acknowledged by the Appellate Division, Fourth Department (Pearl St. Parking Assoc. LLC v County of Erie, 207 AD3d 1029 [4th Dept 2022]).

The Tunnel provided vehicular access between Franklin Street and the underground Ramp until March 2016, when County Executive, Mark Poloncarz, ordered it closed. The closure followed a 2013 Department of Homeland Security ("DHS") Site Assistance Visit, which identified that County security officials lacked control over vehicle access to the Tunnel and described this condition as leaving the Rath Building vulnerable to a vehicle borne improvised explosive device ("VBIED"). DHS recommended eliminating or controlling access to the Tunnel and suggested that the County meet with the owner to determine appropriate access control measures. Although DHS's recommendations were explicitly non mandatory, the County Executive later determined that the Tunnel should be closed permanently.

The record reflects that the decision to close the Tunnel was made without review of the full DHS Report, without consultation with Department of Homeland Security personnel, and without discussions with the County's own Homeland Security Commissioner regarding possible alternatives. The County Executive did not meet with Plaintiffs or their predecessors to explore controlled access measures, despite DHS's explicit recommendation that such discussions occur. The County nonetheless proceeded to close the Tunnel on March 26, 2016, and installed barricades preventing all ingress and egress between Franklin Street and the Ramp. Internal communications within the County reflect an understanding that the closure was intended to be permanent and an expectation that litigation would follow.

While DHS identified both the Tunnel and the County's own underground garage as security concerns, the County addressed vulnerabilities in its garage through access control measures such as swipe cards, restricted access, and additional physical barriers. No comparable assessment or alternative security measures were explored for the Tunnel.

At the time of the 2016 closure, the City of Buffalo owned the Ramp and easement rights and did not object to the County's communication expressing intent to close the Tunnel. Plaintiffs later acquired fee title to the Ramp and Tunnel in July 2019. Plaintiffs commenced this action in June 2020, having been denied all Tunnel access since the 2016 barricading. The Tunnel remains closed today, with the County maintaining exclusive dominion and control over it and providing no access to Plaintiffs, their tenants, patrons, or guests.

ANALYSIS

Successive Motions / Law of the Case

Defendants argue that Plaintiffs' motion for summary judgment is barred by the law of the case doctrine because their previous motion was on the same grounds and ultimately denied. Successive summary judgment motions are generally disfavored. In the instant case, however, facts that were not available at the time of the previous motion are now available after additional discovery (see Magic Circle Film Int'l v Breon, 192 AD3d 1610, 1611 [4th Dept 2021]). These facts came to light only after Plaintiffs' motion to compel  ¹ . Regardless, this Court is not precluded from addressing the merits of the motion and chooses to do so (Giardina v Lippes, 77 AD3d 1290, 1291 [4th Dept 2010]).

First and Second Causes of Action (Quiet Title / Declaratory Judgment)

As to Plaintiffs' first and second causes of action seeking declaratory judgment quieting title pursuant to RPAPL Article 15 the burden is on the Plaintiff to submit sufficient evidence to eliminate all material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Plaintiff must establish that they are titled owners of the easement and that such easement rights are enforceable considering security issues raised by Defendant (Pearl St. Parking Assoc. LLC at 1031).

The Fourth Department previously held Plaintiffs met their initial burden of demonstrating that they are titled owners of the easement (id.; see also NYSCEF Doc. No. 103, Iannini Affidavit). The remaining question is enforceability in light of Defendants' security based assertions.

The security issues stem from a DHS, Site Assistance Visit Report dated November 15, 2013 ("DHS Report"). Daniel J. Neaverth, Jr., Commissioner of the Erie County Department of Homeland Security and Emergency Services, coordinated with Mark A. Kreyer of DHS to provide access to the Rath Building. The DHS Report made multiple recommendations regarding security enhancements for the entire Rath Building, including the Tunnel. DHS recommended either eliminating or controlling access to the Tunnel and specifically recommended that the County meet with the easement owner to determine appropriate measures. Commissioner Neaverth testified he never discussed closing the Tunnel with the County Executive. The County Executive testified he never received a copy of the DHS Report, never met with DHS, and did not explore alternatives. County Executive Poloncarz stated that he alone, "ordered [the Tunnel] closed because of security issues." It was also Poloncarz's intent that the Tunnel closure be permanent. (NYSCEF Doc. No. 167).

Defendants rely on "police powers" to justify the closure of the Tunnel (see NYSCEF Doc. No.173, Siragusa Aff. p. 60). Defendants cite Island Park, LLC v State, (93 AD3d 1064, 1065-1067 [3d Dept 2012][NYS DOT, pursuant to Railroad Law § 97, acted properly when it closed railroad crossing despite Plaintiff's easement rights]), to argue that a municipality acts within its police power when it "regulates the use of private property in a reasonable manner to protect the health and safety of the public — i.e., to prevent an impending danger emanating directly from the use or condition of the property." Defendants claim that the reasonableness of their actions is a question of fact and can only be resolved if the Plaintiffs establish, with admissible evidence, that the county went beyond what is customary and reasonably necessary (see Chain Locations of Am., Inc. v Westchester Cnty., 20 Misc 2d 411, 415 [Westchester Co Sup Ct 1959][holding that the County cannot unreasonably barricade the driveway when all that is needed, in order to eliminate the hazard of left-hand turns into the parkway is a "no left turn" sign]).

Plaintiffs argue that Island Park is inapplicable as the State's "regulation of railroad crossings has historically been recognized as an exercise of its police power " (93 AD3d at 1066). Plaintiffs claim the Court of Appeals in Matter of Belle Harbor Realty Corp., v Kerr, (35 NY2d 507, 511 [1974]), established a three-part test for a municipality's use of police powers. The Court held "[t]o justify interference with the beneficial enjoyment of property the municipality must establish that it has acted in response to a dire necessity, that its action is reasonably calculated to alleviate or prevent the crisis condition, and that it is presently taking steps to rectify the problem" (id.).

Plaintiffs maintain that the evidence establishes Defendants did not close the Tunnel "in response to a dire emergency," nor were their actions "reasonably calculated to alleviate or prevent the crisis condition." Plaintiffs argue the evidence establishes that the Tunnel closure was not in response to any specific or imminent threat and the complete exclusion of Plaintiffs from their property rights was the most extreme option with no consideration of any alternative.

Plaintiffs and Defendants arguments and legal analysis as applied to the instant case can be easily harmonized. The Court of Appeals three-part test in Belle Harbor is simply a way to determine the reasonableness of a municipality's exercise of its police power to regulate the use of private property to protect the public. As the trial court stated in Chain Locations of Am., Inc. v Westchester Cnty., "[e]very property right is held subject to the paramount right of the State to reasonably regulate its use in the interest of the public welfare and safety. Of course the regulation must be reasonable and its reasonableness is to be determined in the light of all the facts and circumstances" (20 Misc 2d at 415[internal citations omitted]). Or as the Court of Appeals stated in Charles v Diamond, (41 NY2d 318, 327 [1977]), "a municipal exercise of the police power which interferes with the beneficial use of property must be a reasonable and legitimate response to a situation which it is within the police power to correct. While we have mentioned several considerations that may serve as useful guides, determinations of reasonableness must turn upon the facts and circumstances of particular cases."

The question is whether the evidence presented on this record at this stage of the proceedings is enough to establish whether the County Executive's closure of the Tunnel was a reasonable exercise of his police power. It was not.

There is no question that when presented with an imminent emergency or a specified threat the County Executive is free to exercise police powers to address such emergencies or threats (see e.g. New York Executive Law Section 24). The municipality, however, bears the burden to establish that such exigent circumstances exist to necessitate such action (see Charles v Diamond at 326; Rapps v City of New York, 54 AD3d 923 [2d Dept 2008]).

The DHS Report was received by Commissioner Neaverth on November 15, 2013. The Tunnel was ordered closed by County Executive Poloncarz effective March 26, 2016. It cannot be said that the DHS Report raised the possibility of an imminent threat if it took more than two years and four months to close the Tunnel. Even the Siragusa affirmation, that was generated after litigation had begun, only identifies generalized security concerns, including the DHS Report, as justification. The evidence presented establishes that the closure of the Tunnel was not in response to "dire emergency."

The record also establishes that alternatives to a complete closure and extinguishment of the Plaintiffs property rights were available and apparent. The DHS Report didn't exclusively recommend closure of the Tunnel. It also recommended controlled access through discussions with the Plaintiff. In fact, testimony from Commissioner Neaverth and County Executive Poloncarz detail enhanced security features to the County's parking garage located under the Rath building and flagged by the DHS Report. No alternatives were considered for the Tunnel.

Defendants argue that "Plaintiffs' ponderings of the County Executive's authority do not speak to reasonableness" (NYSCEF Doc No. 181 p. 10). The Court disagrees. If the County Executive were acting pursuant to authority granted to him in the County Charter, NYS Executive Law, or pursuant to a local law or resolution passed by the County Legislature, it would provide some evidence of reasonableness. The best Defendants can do, however, is cite Article 302 of the Charter which gives the County Executive general executive authority and Article 11 which gives the Commissioner of Public Works charge over, inter alia, maintenance, repair, and operation of county building and grounds. While this gives the County Executive authority over county property it does not include authority to unilaterally extinguish private property rights.

In fact, despite what the County Executive may believe (see NYSCEF Doc. No. 189), he does not possess the sole power to commence eminent domain proceedings without authorization from the County Legislature (see County Law § 215; Eminent Domain Procedure Law § 101; Matter of County of Cortland (Miller), 72 AD3d 1436, 1438 [3d Dept 2010][EDPL is the exclusive procedure for the exercise of eminent domain]). There must be a limiting principle to executive action when unilaterally eliminating private property rights, yet Defendants have failed to identify one. This is not a procedural question subject to Article 78 proceedings, but further evidence of the reasonableness, or in this instance, unreasonableness of the County Executive's order to close the Tunnel and the County's subsequent actions.

The Court finds Plaintiffs have met their evidentiary burden establishing that they are titled owners of the easement and that Defendants' actions extinguishing their easement rights were unreasonable. Defendants have failed to establish the existence of material issues of facts that their exercise of police powers due to security concerns were reasonable. No dire necessity was shown, nor were alternatives considered.

Third Cause of Action (Breach of Contract)

Plaintiffs third cause of action is for breach of contract. To prove a breach of contract the Plaintiff must show that (1) a contract exists; (2) plaintiff performed in accordance with the contract; (3) defendant breached its contractual obligations; and (4) defendant's breach resulted in damages (34-06 73, LLC v Seneca Ins. Co., 39 NY3d 44, 52 [2022]). The contract at issue is the TPA between the Developer, the Bank and the City as part of the 1965 urban renewal project. The TPA specifically states that the deeds conveying the premises mentioned in the TPA, (which includes the easement for the Tunnel), shall make the performance of the terms of the TPA an obligation of the Grantees. It also states that the TPA is "binding upon the parties hereto, their successors and assigns, and upon all persons who may hereafter own the fee or have the right of possessions of the lands, or any part thereof, described in the Plan of Redevelopment". The TPA was recorded in the Erie County Clerk's Office on November 1, 1966, in Liber 7297 of Deeds at pg. 437. (NYSCEF Doc. No. 7).

When the Bank deeded 95 Franklin Street to Erie County on April 4, 1968 (Liber 7456 pg 207), specifically reserving the easement rights to the Tunnel pursuant to the TPA, the County assumed the obligations of the TPA. Not only was the easement expressly part of the deed, The TPA was part of the chain of title (see Franklin Park Plaza, LLC v V & J Natl. Enters., LLC, 57 AD3d 1450, 1451-1452 [4th Dept 2008]. The County is therefore contractually obligated to keep the Tunnel free and clear from obstruction allowing passage through to Plaintiffs' Ramp.

Defendants argue that the easement, pursuant to the terms of the deed, remains "subject to such further conditions as are required to protect the structural integrity of the County Office Building and adjacent structures ." (NYSCEF Doc. No. 9). And that the County Executive's order to extinguish the easement and access to the Tunnel due to generalized security concerns was consistent with that provision. The 1968 deed, however, specifically states that there shall be a permanent underground easement. "The extent of an easement is determined by the language of the grant and, when necessary, by any circumstances that tend to show the parties' intent" (Lopez v Adams, 69 AD3d 1162, 1163-1164 [3d Dept 2010]). As in Lopez, Defendants' actions must be limited to effectuate the express purpose of the easement. The "required to protect structural integrity" clause should be narrowly construed and does not authorize the extinguishment of Plaintiffs rights in their entirety. The County's interpretation of the clause is too broad and inconsistent with the express terms of the deed, the TPA, and intent of the parties.

The closure of the Tunnel and extinguishment of Plaintiff's rights to its use has diminished the value of Plaintiffs' property rights. The closure creates an inconvenience to Plaintiffs patrons, guests, and tenants and increases traffic entering the Ramp. Plaintiffs' have been harmed due to Defendants' breach.

Fourth Cause of Action (Trespass)

Plaintiffs' fourth cause of action is for continuing trespass. Plaintiffs have established their property rights in the Tunnel. Defendants contend that the Tunnel closure constitutes a de facto taking or inverse condemnation, thereby extinguishing those property rights and triggering a three-year statute of limitations, which has expired. But the Court of Appeals in Corsello v. Verizon NY Inc., (18 NY3d 777, 786-787 [2012]), held that a property owner may pursue a trespass claim even against an entity with condemning authority. In distinguishing a temporary trespass from a de facto taking, courts generally look to the extent, duration, and severity of the occupation (id.). An entity that merely possesses eminent domain power cannot invoke a de facto taking to avoid trespass liability unless it has actually exercised that power. In some situations, an unauthorized occupation may permit the owner to elect between treating the intrusion as a trespass or as a taking, and an entity wishing to remain on the property can simply initiate formal condemnation proceedings (id.). As one trial court observed in FMC Co., v Driscoll, (56 Misc 3d 638, 644-645 [Sup Ct, Richmond County 2017]), what appears "permanent" may not truly be so. Structures such as telephone equipment affixed to a building, as in Corsello, can be removed, allowing the property to be restored, and even buildings or other installations can be dismantled to return land to its prior condition.

The evidence developed by Plaintiff through further discovery establishes that despite the intentions of the County Executive for the Tunnel closure to be permanent, the removal of the barrier can be accomplished and does not represent a permanent occupation. Further, Defendants never exercised their power of eminent domain and cannot now invoke a de facto taking to avoid liability for trespass. The Plaintiffs have established that the Defendants are committing continuous trespass that cannot be justified based on general safety concerns absent exigent circumstances. The mere existence of a theoretical risk does not constitute exigency under Belle Harbor. Defendants have failed to establish the existence of any material facts that would justify their trespass.

Injunctive Relief

Whether the remedy pursuant to RPAPL § 1515 or the Defendants' trespass is solely an award for damages, injunctive relief, or both "depends on all the equities between the parties, and the facts and circumstances of the particular case" (Hullar v Gilder Oil Co., 219 Ad2d 825, 826 [4th Dept 1995]). Factors to consider include the extent of impairment, defendants' hardship in removing the encroachment, whether any alternatives would afford more equitable relief, or whether money damages would be a just and adequate remedy. Injunctive relief may be denied based on the plaintiff's delay in vindicating his or her rights and based on the defendants' lack of willfulness in creating the encroachment (DMT Management, LLC v Haight, 214 AD3d 1345, 1346 [4th dept 2023]).

The record establishes that Defendants' obstruction of the Tunnel constitutes a willful, continuing and unjustifiable trespass, for which money damages alone would be inadequate. Plaintiffs have demonstrated ongoing impairment of access to the easement reserved in the 1968 Deed and the TPA, the diminished utility of their Ramp and associated property rights, and continued interference with ingress and egress for tenants, patrons, and guests. New York courts have consistently held that while a servient owner may impose reasonable, non destructive conditions to address security or safety concerns, it may not erect barriers that eliminate the easement holder's use. In Lewis v. Young, (92 NY2d 443, 449-450 [1998]), the Court of Appeals held that servient owners may install gates "so long as the easement holder's right of passage is not impaired." The relevant harm is not the inconvenience of alternative access points, but the destruction of the bargained for easement itself.

Defendants have failed to demonstrate that any exigent circumstances justify continued obstruction of Plaintiffs' easement. The DHS Report did not mandate closure. It recommended discussions with the owners to eliminate or control access. Defendants considered no alternatives, despite employing enhanced access control features for their own underground garage. New York law requires that any restriction under police power be "kept within the limits of necessity," and the County must establish dire necessity, reasonable calculation to alleviate the danger, and steps taken to rectify the underlying issue (see, Belle Harbor; Charles). None of these prongs were met. Where a servient landowner has less intrusive alternatives, such as gates, swipe card access, or security measures, (like the County itself uses for its own garage), complete closure is unreasonable as a matter of law. Because the County cannot justify its obstruction under police powers or under the terms of the easement, the continued closure is not permissible.

The Court finds injunctive relief appropriate under the standards set forth in Hullar and DMT Management. The Court has weighed the extent of impairment of Plaintiffs' property rights, the feasibility of removing the obstructions placed by Defendants, the availability of alternatives, the adequacy of monetary damages, and whether Defendants acted willfully. None of these factors warrant denial of equitable relief. Accordingly, equitable relief is the only adequate means of restoring the easement's beneficial use and preventing ongoing harm. Defendants are required to remove the barriers and open the Tunnell for its intended use as soon as practicable.

Dismissal of Individual Defendants

Defendants seek the dismissal of the action against the individually named defendants, County Executive Mark Poloncarz and Commissioner of Public Works William Geary. Defendants argue that County Law § 54 protects Poloncarz and Geary from liability "for any act or omission of any employee of the county employed within the agency, department, bureau, or office of which he is such head."

Geary's role was limited to following the direction of the County Executive and supplying and directing the placement of the barricades in front of the Tunnel. Nothing in the record suggests that Geary was acting outside of his official duties and he is therefore not properly sued individually.

As for County Executive Poloncarz, the analysis is different, but the results are the same. Poloncarz lacked legal authority to order the closure of the Tunnel under the facts of this case because his actions exceeded the powers granted to him by law. While he lacked legal authority to extinguish Plaintiffs' private property rights, it does not mean he acted outside the protection of County Law § 54.

Even though County Executive Poloncarz's decision was wrong, unreasonable, and exceeded the limits of police power, the record reflects that he acted in his capacity as County Executive as the official charged with County building security, public safety, and administration of County property. His testimony establishes that he ordered the Tunnel closed based on security concerns relating to the Rath Building. When an official is performing the duties of his office, although improperly, he is still acting within the scope of official duties for purposes of individual-capacity dismissal. Plaintiffs therefore do not establish that Poloncarz acted in a personal capacity or outside the general ambit of his official duties. His decision was made, though erroneously, in his role as the County's chief executive responsible for security. Under County Law § 54 claims against him individually are dismissed.

Accordingly, it is hereby

ORDERED, that Plaintiffs' motion for Partial Summary Judgment on liability on Plaintiffs First, Second, Third and Fourth Causes of Action is GRANTED in its entirety

ORDERED, that Plaintiff's motion for immediate and permanent injunctive relief opening the Tunnel is GRANTED; and it is further

ORDERED, that Defendants' motion for summary judgment on Plaintiffs First, Second, Third and Fourth Causes of Action is DENIED; and it is further

ORDERED, that Defendants' motion to dismiss Plaintiffs complaint against County Executive Mark Poloncarz and Commissioner William Geary in their individual capacities is GRANTED, as the acts complained of occurred within the scope of their County duties, and any resulting liability is that of the County of Erie; and it is further

ORDERED, that the Parties shall contact the Court to schedule a hearing on damages within 30 days of the entry of this Decision and Order; and it is further

ORDERED that this constitutes the Decision and Order of the Court.

DATED: AUGUST 25, 2026

HON. RAYMOND W. WALTER, J.S.C.

ENTER:

FOOTNOTES

1.    Pearl Street Parking Assoc., LLC v County of Erie, 2023 NY Slip Op 34754[U] [Sup Ct, Erie County 2023]; affd 232 AD3d 1280 [4th Dept 2024]).

Raymond W. Walter, J.