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Incorporated Village of Bayville v. Viteritti

Other Lower Courts

January 29, 2008

The Incorporated Village of Bayville, Plaintiff,
John Viteritti and Marguerite Viteritti, Michael Falzarano and Diane J. Falzarano, Defendants.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.


Kenneth A. Davis, J.

Upon the foregoing papers, plaintiff's motion for summary judgment is granted in part and denied in part. Cross-motion by defendants John and Marguerite Viteritti for summary judgment is granted in part and denied in part. Cross-motion by defendants Michael and Diane Falzarano for summary judgment is granted to the extent indicated below.

This is an action for a permanent injunction restraining defendants from obstructing Shore Road, a paved thoroughfare located in the Village of Bayville. While Shore Road was originally a private right of way, the Village alleges that it has become a public street.

Defendants John and Marguerite Viteritti are the owners of two lots of residential property located in the Village and known as One Tides Court. The lots are designated as Section 29, Block 104, Lots 20 and 27 on the Land and Tax Map of Nassau County. Tides Court is a cul-de-sac which abuts on Shore Road in the vicinity of the Viteritti's lots. There are six residential properties on Tides Court. Lot 27, which contains the Viteritti's home, is located at the northern foot of the cul-de-sac. Lot 20 is located on the opposite side of Shore Road, overlooking protected wetlands and Mill Neck Creek. Shore Road runs from Godfrey Avenue, a public street, in a northeasterly direction to Arlington Lane, a distance of approximately 800 feet. According to the Village, Arlington Lane is a private street which is in public use. There are approximately 30 miles of roads in Bayville, and 2/3 of the miles are private roads open to the public. While the Village performs some maintenance work on these private roads, it appears that the primary responsibility belongs to the adjoining property owners.

Lot 27 was originally part of a larger tract which was owned by John Viteritti's company, Tides Construction Corporation, and subdivided by Tides Construction in 1974. The subdivision map which Tides Construction submitted to the Village Planning Board and the Nassau County Planning Commission provides that "the lands shown on this map as roads, streets, or highways...are hereby irrevocably offered for dedication to the municipality having jurisdiction thereof." The map shows Shore Road at its intersection with Tides Court. Both Tides Court and the portion of Shore Road from Tides Court to Godfrey Avenue were paved by Tides Construction in the course of developing the subdivision project. The company also installed water mains and a fire hydrant and granted the Village an easement to maintain them. The Viteritti's took title to Lot 27 in November, 1974. Lot 20 was not conveyed pursuant to the subdivision, and it is unclear when the Viteritti's took title to that parcel.In 1976, John Viteritti erected a barricade across Shore Road at a point north of its intersection with Tides Court and between lot 20 and lot 27. The barricade is 29 feet long and 4 feet high. It is presently comprised of "decorative boulders," a fence, shrubs, grass, and Belgium blocks. The barricade was erected pursuant to an "easement agreement" among Viteritti and the owners of other properties which abutted Shore Road. Because of the barricade, Tides Court is not accessible from streets to the north. The only means of ingress is to take Godfrey Avenue to Shore Road, approaching from the south.

Shortly after the barricade was constructed, Victor Ort, the Village Attorney, wrote to John Viteritti, requesting that he remove it. Ort noted that the barricade might interfere with the fire protection of Shore Road properties because it was located near a hydrant. Ort also observed that the barricade had impeded garbage collection. However, the Viteritti's ignored Ort's request. It appears that the issue of the barricade was dormant during the 1980's. In April 1994, James Goolsby, the Village Building Inspector, wrote to John Viteritti, requesting that the matter of the barricade be discussed. A handwritten memo on Goolsby's letter indicates that Viteritti had "visited [the] office and explained [the] condition [and it was] O.K." Nevertheless, Victoria Siegel, the Mayor of Bayville, maintains that "over the years, "she has attempted to have Viteritti remove the barricade. According to the Village's current Code Enforcement Officer, if a fire occurred on Shore Road west of the barricade, firefighters would be required to travel approximately an extra mile to reach it. The Viteritti's maintain that emergency service workers have "immediate access" to the various premises.

This action seeking an injunction ordering the Viteritti's to remove the barricade was commenced on January 7, 2005. The Village maintains that the barricade constitutes a public nuisance in that it interferes with effective fire protection, police and ambulance service, the movement of traffic, and the provision of utilities. Alternatively, the Village maintains that Shore Road was dedicated to public use pursuant to the subdivision or became a village street by prescription pursuant to Village law 6-626. The Viteritti's counterclaim for a judgment declaring that the portion of Shore Road running across their property is part of their private property and not a Village street.

Michael and Diane Falzarano are the owners of the property known as 121 Godfrey Avenue. The Falzarano property is located at the intersection of Godfrey Avenue and Shore Road, south of Tides Court and the area where the barricade was constructed. The Falzarano's acquired their property in 2004 and were not parties to the original easement agreement. By order dated July 22, 2005, the court granted the Falzarano's motion to intervene as defendants. The Falzarano's support the Village's motion for an injunction compelling removal of the barricade. However, the Falzarano's oppose the Village's application for a declaratory judgment that Shore Road has become a village street. The parties are now cross-moving for summary judgment.

Dedication is the intentional donation of land by its owner for a public use, and essentially it is in the nature of a gift( Tarrytown v. Woodland Lake Estates, Inc., 97 A.D.2d 338, 340 [2d Dep't 1983]). Whether land has been dedicated by the owner to the use of public travel and whether it has been accepted for that purpose by the municipality involves the intent and acts of both of the parties ( New York v. Transit Corp., 273 N.Y. 394, 400-01 [1937]). Where a subdivision plot is made and recorded, the intention of the owner is generally indisputable( Flack v. Green Island, 122 N.Y. 107, 114 [1890]).

The Viteritti's claim that Shore Road was referred to on the map simply for "identification purposes," and that Tides Construction did not intend to dedicate either Shore Road or Tides Court as a public street. The Viteritti's further claim that because Tides Construction and/or the Viteritti's were not the sole owners of Shore Road at the time of the subdivision, no dedication was possible. The court notes that the Viteritti's have not disclosed what other party may have had an interest in the section of Shore Road on which the barrier is located. [1] Moreover, "dedication rests upon an estoppel in pais" (Lehigh and Hudson River Railway Co. v. Warwick, 164 A.D. 55 [2d Dep't 1914]). Thus, a purported owner may by his conduct be precluded from denying ownership or an intent to dedicate, if the municipality has changed its position to its detriment.

Subdivision approval was granted upon the representation that Shore Road was irrevocably offered for dedication to the Village. Accordingly, the Viteritti's are estopped from denying the requisite ownership interest in Shore Road or an intention to dedicate the property to public use. However, by listing its public streets without including Shore Road, the Village in effect concedes that it did not accept the dedication. Indeed, the existence of the barricade across Shore Road for thirty years confirms that its dedication was not accepted. Thus, the court concludes that Shore Road has not been dedicated to the Village of Bayville as a public street.

Village Law 6-626 provides that "All lands within the village which have been used by the public as a street for ten years or more continuously, shall be a street with the same force and effect as if it had been duly laid out and recorded as such." Use or potential use by the public will not, by virtue of that fact alone, transform a private road into a public street ( American Nassau Building Systems v. Press,143 A.D.2d 789 [2d Dep't 1988]). "In addition to a finding of use by the public, there must be a finding that the road has ...

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