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Stephen A. Pilatich v. Town of New Baltimore

January 3, 2011

STEPHEN A. PILATICH, PLAINTIFF,
v.
TOWN OF NEW BALTIMORE, DENIS JORDAN, AS SUPERVISOR OF HIGHWAYS OF THE TOWN OF NEW BALTIMORE,
AND WILLIAM M. HAMILTON AND DONNA R. HAMILTON, DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

Plaintiff Stephen Pilatich commenced the instant action against Defendants Town of New Baltimore (the "Town") and Denis Jordan (the "Town Defendants") and William and Donna Hamilton claiming that the Town Defendants took his real property without just compensation; the Town Defendants violated his right to equal protection under the law; the Town Defendants have trespassed on his land; and all Defendants have caused a nuisance. Plaintiff seeks damages and injunctive relief. Presently before the Court are Defendants' motions for summary judgment pursuant to Fed. R. Civ. P. 56 seeking dismissal of the Complaint in its entirety.

I. FACTS

Plaintiff Stephen Pilatich owns property and resides at 62 Jennings Road in the Town of New Baltimore, County of Greene, State of New York. Defendants William and Donna Hamilton own property and reside at 59 Jennings Road (the "Road") in the Town. Plaintiff's property and that of the Hamilton's are across the street from one another. Jennings Road is a highway by use in the Town. The property deeds indicate that Jennings Road runs along the property line between the Pilatich and Hamilton properties, with the property line being approximately the center of the road.*fn1

The Town has maintained Jennings Road (including patching, resurfacing, plowing, and ensuring proper signage) as a Town highway since the 1920s. Historically, the road was a dirt road. The original surface of Jennings Road was determined by the area over which vehicles traveled. In 1998, the Town resurfaced Jennings Road with a stone and oil mixture. The Town contends that the Road's centerline did not change as a result of the 1998 resurfacing. Plaintiff disagrees and maintains that the Road has gradually shifted to the north and the east toward his property.

Between 2000 and 2001, Plaintiff made complaints to Jordan about drainage problems on Jennings Road. In response, the Town undertook some work along the side of Jennings Road, including the construction of ditching. Plaintiff asserts that the Town filled in the previously existing ditch, which has caused fill to be deposited onto his property. In July 2001, Plaintiff requested that the Town install guardrails on his side of the road to prevent the road from moving any further towards his property. This request was denied.

In 2005, the Road was resurfaced with blacktop. The Town contends that the resurfacing did not change the direction or area of the Road. Plaintiff disputes this. At some point in time, the exact date of which is in dispute, the Hamilton's erected a stone wall on their property near the edge of the road. Sometime thereafter, but no later than 2006, the Hamiltons installed steel posts extending beyond where the stone wall ended.

Since 1998, Plaintiff has complained to Defendant Town Highway Superintendent Denis Jordan concerning the Town's maintenance of the Road and the Hamilton's stone wall and steel posts. Plaintiff has complained that the condition of the road causes sight distance and safety problems and also prevents large trucks from accessing his driveway. The Town recommended that Plaintiff widen his driveway. Plaintiff disagrees that this is a viable solution.

Plaintiff commenced the instant action asserting the following claims: (1) a taking of real property (this claim has now been withdrawn); (2) a denial of his right to equal protection under the law; (3) trespass; (4) damage to property; and (5) private nuisance. Plaintiff seeks damages and injunctive relief directing Defendants to remove the structures installed by the Hamiltons and "correct[ing] and remov[ing] the unauthorized road surface and road drainage from Plaintiff's property."

Presently before the Court are Defendants' motions to dismiss pursuant to Fed. R. Civ. P. 12 or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56 seeking dismissal of the Complaint in its entirety. Plaintiff opposes the motions.

II. STANDARD OF REVIEW

Because the motions were properly noticed and filed as motions for summary judgment and because all the parties submitted materials outside the pleadings, the Court will address the motions under the summary judgment standard.

Rule 56 of the Federal Rules of Civil Procedures governs motions for summary judgment. On a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56( c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). ...


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