Posted by: Patricia Salkin | November 6, 2011

NY Appellate Court Finds Right-of-Way Easement is Not a Paper Street

Defendant Valentine had proposed to improve Terrace Place, a right-of-way easement which benefitted his parcel and burdened parcels owned by plaintiffs, the Blums.  Following an Article 78 proceeding seeking to invalidate site plan approval given to Valentine’s plan, see Valentine v. McLaughlin, 930 N.Y.S.2d 51 (N.Y.A.D. 2 Dept. 2011), the Blums filed this action seeking a judgment that Terrace Place is not a “paper street” and to enjoin Valentine and town officials from developing it by virtue of its characterization as a “paper street.”  

In a related proceeding, the state Supreme Court, Westchester County, had remarked in dicta that it believed Terrace Place to be a street, and thus held that the Blums were collaterally estopped from challenging the legal status of Terrace Place.  However, the Appellate Division held that the Blums did not have a fair opportunity to litigate the legal status of Terrace Place, and that the injunctive relief they sought was not available to them in the original Article 78 proceeding.  Therefore, the state Supreme Court erred in holding that the Blums were collaterally estopped from seeking such relief, and the challenge to the legal status of Terrace Place could proceed.                    

On the matter of the legal status of Terrace Place, the Appellate Division noted that town law prohibited the issuance of a building permit for a parcel without access to a “street or highway,” and that Valentine’s property lacked access to any established “street or highway,” since it only had access to streets via the Terrace Place right-of-way.  Since the plaintiff failed to provide any evidence that Terrace Place was listed on any official town documents as a “paper street,” the court held that Terrace Place was not a “paper street” which would satisfy the requirements of town law.  Therefore, the state Supreme Court had also erred in denying the Blums’ motion for summary judgment declaring that Terrace Place was a “right-of-way,” not a “paper street,” and enjoining defendants from developing Terrace Place as a paper street.  The case was remitted to the trial court for an entry of judgment in favor of the Blums. 

Blum v. Valentine, 2011 WL 4507168 (N.Y.A.D. 2 Dept. 9/6/2011) 

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2011/D32374.pdf


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