NY Appellate Court Overturns Summary Judgment in Road Maintenance Takings Case

This post was authored by Amy Lavine, Esq.

InFederman v. Town of Lorraine, 213 A.D.3d 1220 (4th Dept. 2/3/23), the Fourth Department held that lower court erred in granting summary judgment to the town on the plaintiff’s eminent domain cause of action. The case arose from a dispute over maintenance that the town performed on the road leading to plaintiffs’ home, which the plaintiff contended was an unlawful taking of his property. To be entitled to a grant of summary judgment dismissing the eminent domain claim, the town was required to establish that the road qualified as a “public highway by use” under the state highway law, such that the town’s work would have qualified as permissible maintenance rather than an improper widening of the road. However, the court found that the town defendants failed to submit evidence proving that the road met the statutory definition of a public highway by use. As the court explained, the classification required that “for a period of at least 10 years, the road at issue was used by the public and the municipality exercised dominion and control over the road…. Such a showing… requires more than intermittent use by the public and more than occasional road work by the municipality.” The court found that that town’s evidence, which included the plaintiff’s own hearing testimony and the affidavit of the highway superintendent, whose personal knowledge of the facts was limited to the two years that preceded the filing of the motion, was insufficient to prove the town’s case. Although the court reversed the grant of the town’s motion for summary judgment, it held that the lower court properly denied the plaintiff’s cross-motion, since the plaintiff’s evidence did not eliminate all triable issues of fact regarding whether the road was a public highway and whether the town’s maintenance amounted to a taking by widening the road outside the minimum permitted width of a public highway as prescribed by the state highway law. As the court explained, contrary to the plaintiff’s contention, the town was not limited to performing maintenance within the area of the prior public use of the road, because the statute “plainly permits a town to maintain and improve it in furtherance of the public’s right of travel, to the width of ‘at least three rods.'” Because plaintiff failed to show the Town’s maintenance exceeded this minimum permitted width, he did not meet his burden for summary judgment on the eminent domain claim.

Federman v. Town of Lorraine, 213 A.D.3d 1220 (4th Dept. 2/3/23)