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John Viteritti and Marguerite Viteritti v. Incorporated Village of Bayville

November 21, 2011


The opinion of the court was delivered by: Hurley, Senior District Judge:


Plaintiffs John and Marguerite Viteritti ("plaintiffs" or "the Viterittis") commenced this action alleging that defendant Incorporated Village of Bayville ("defendant" or the "Village") seized a portion of their real property without providing them with just compensation in violation of their Fifth Amendment rights. Plaintiffs also assert a Fourteenth Amendment equal protection claim as well as state law causes of action for trespass, private nuisance, negligence, and violations of Section 853 of the New York Real Property Actions and Proceedings Law. Presently before the Court is defendant's motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set forth below, defendant's motion is granted.


The following factual recitation is gleaned from the pleadings and exhibits attached thereto.

The Property

The Viterittis are a married couple who reside at and own certain real property located at 1 Tides Court, Bayville, New York, which is "more fully described as Section 29, Block 104, Lots 20 and 27 on a Land and Tax Map duly filed in the Office of the Clerk of the County of Nassau" (the "Property").*fn1 (Compl. ¶¶ 1-4.) The Village is a municipal corporation duly organized and existing under the laws of the State of New York. (Id. ¶ 6.)*fn2

The area surrounding the Property consists of one public road and several private streets. Godfrey Avenue, one of only three public roads in the entire Village, lies south of the Property and intersects with Shore Road. (Id. ¶ 18.) Shore Road, in turn, runs in a northeasterly direction from its intersection with Godfrey Avenue until it dead-ends "at a 'T' intersection" with Tides Court, a private cul-de-sac located "in front of" the Property. (Id. ¶¶ 16, 18, 19.) According to plaintiffs, Shore Road "is a private road owned by the owners of Tides Court properties, including plaintiffs herein, and owners of Shore Road properties." (Id. ¶ 22.) Plaintiffs allege that between approximately 1973 and April 21, 2009, all vehicular traffic accessed Tides Court by traveling north on Shore Road from Godfrey Avenue. (Id. ¶ 18.) That portion of Shore Road "has never been a public road." (Id. ¶ 22.)

Between approximately 1973 and April 21, 2009, the southern portion of the Property that abutted the "'T' intersection" of Tides Court and Shore Road consisted of "a manicured landscaped lawn with miscellaneous decorative boulders located on it." (Id. ¶ 17.) The northerly portion of that section of the Property contained a fence and hedge. (Id. ¶ 23.) North of the Property, "Shore Road resume[d], projecting north and intersect[ing] with three other private roads -- Saltaire Lane, Washington Avenue and Arlington Lane." (Id. ¶ 24.) In other words, for thirty-six years prior to April 21, 2009, these three private roads, which lay north of the Property, merged into Shore Road, ran south toward the Property, and "'dead ended' at the northerly end of the Viteritti property line adjacent to" the fence and hedge. (Id. ¶ 25.)

To partially reiterate, plaintiffs describe the area surrounding the Property as follows: "For thirty-six years prior to April 21, 2009, the private road known as and by Shore Road stopped at plaintiff[s'] southerly property line and resumed at plaintiff's northerly property line at the Viteritti fence and hedge." (Id. ¶ 27.) The area of the Property at issue here (the "Disputed Area") lays between Shore Road's T-intersection with Tides Court on the southern edge of the Property and the location where Shore Road resumed north of the Property. Plaintiffs allege that the Disputed Area was "used as private property and [was] improved with a manicured landscaped lawn . . . together with [a] fence and hedge . . . ." (id. ¶ 28), and during that time "there was no vehicular traffic across" the Property (id. ¶ 29).

The State Court Action

On January 7, 2005, the Village commenced an action against plaintiffs in New York State Supreme Court, Nassau County (the "State Court Action") before trial judge Kenneth A. Davis. Judge Davis described the State Court Action as "an action for a permanent injunction restraining [the Viterittis] from obstructing Shore Road, a paved thoroughfare located in the Village of Bayville." (Ans., Ex. C at 1, 4.) More specifically, the Village sought to have the Disputed Area of the Property (which Judge Davis referred to as "the barricade") declared a public nuisance and removed. (Id. at 4.) The Viterittis counterclaimed seeking a declaratory judgment that the Disputed Area "is part of their private property and not a Village Street." (Id. at 4-5.)

On January 29, 2008, Judge Davis rendered a decision on the parties' motions for summary judgment in the State Court Action. (Ans., Ex. C.) In that decision, he described the Disputed Area as follows:

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 1/2 feet high. It is presently comprised of "decorative boulders," a fence, shrubs, grass, and Belgium blocks. . . . 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. (Id. at 3.) After reviewing the evidentiary record, Judge Davis concluded that Shore Road was not a public street (id. at 7-8), but noted that "a public nuisance may also exist on private property, if the property, health or safety of a considerable number of persons is effected" (id. at 9). He ultimately concluded that the barricade constituted a public nuisance to the residents living south of the barricade because "it interfered with their rights to fire protection and also police, ambulance, and other emergency services. The barricade also interfere[d] with public access to Shore Road . . . ." (Id.) Judge Davis declined to issue a mandatory injunction requiring the Viterittis to remove the barricade, but ruled that "the Village may remove the obstruction itself, subject to a right of recoupment of expense from the [Viterittis]." (Id. at 10-11.) Thus, an injunction was issued that prohibited the Viterittis "from interfering with efforts of the Village to remove the barricade on Shore Road." (Id. at 11.)

The Village's Subsequent Alleged Conduct

Plaintiffs allege that on April 21, 2009, the Village took possession of, and forcibly ejected them from, a 100-foot-by-25-foot portion of the Property without plaintiffs' consent. (Compl. ¶ 32.) According to plaintiffs, the Village removed plaintiffs' lawn, decorative boulders, fence, and shrubbery irrigation system and, by "connecting Shore Road north of plaintiffs' property to Shore Road south of [plaintiffs'] property, [the Village] create[d] a thru-street across plaintiffs' property without plaintiffs' permission, consent or authorization." (Id. ¶¶ 34, 35.)

The Complaint

The Complaint was originally filed in New York Supreme Court, Nassau County on June 30, 2010. Defendant removed the action to this Court on July 19, 2010 based on federal question jurisdiction. Plaintiffs assert eight causes of action against the Village. With respect to the federal causes of action, plaintiffs allege that defendant "has taken plaintiffs' property without just compensation and/or without due process of law" in violation of the Fifth Amendment (id. ¶ 61), and has denied plaintiffs' their Fourteenth Amendment rights to "the equal protection of law" (id. ¶ 74.) Plaintiffs also assert a cause of action entitled "Civil Rights," which alleges that defendant has "deprived plaintiffs of their civil rights under the United States ...

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