SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 10, 1968
MILTON ROSS ET AL., RESPONDENTS,
STATE OF NEW YORK ET AL., APPELLANTS, ET AL., DEFENDANT
In an action to declare that an appropriation by the State of New York of a certain parcel of land owned by plaintiffs is void and to enjoin the construction of an access road thereon, the State and its Department of Transportation appeal from an order of the Supreme Court, Westchester County, dated October 17, 1967, which denied their motion for summary judgment.
Beldock, P. J., Benjamin and Martuscello, JJ., concur; Christ and Rabin, JJ., dissent and vote to affirm the order.
The public generally will have the absolute right to use the proposed "Sanctuary Connection" and will have access thereto from Chestnut Ridge Road. That the road may be of primary benefit to those property owners which abut it does not serve to convert a public use to a private one (cf. Bradley v. Degnon Contr. Co., 224 N. Y. 60, 71; Matter of Burns, 155 N. Y. 23, 27; Matter of Fam v. Shapiro, 15 N.Y.2d 174, 180).
Order reversed, on the law, without costs, motion for summary judgment granted, and it is declared that the appropriation is for a public purpose.
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