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Viteritti v. Incorporated Village of Bayville

United States District Court, E.D. New York

January 14, 2013

John VITERITTI and Marguerite Viteritti, Plaintiffs,

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Edwards & Edwards, bye: Harrison J. Edwards, Esq., Freeport, NY, for Plaintiff.

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Morris Duffy Alonso & Faley, by: Drew William Sumner, Esq., Carl S. Sandel, Esq., New York, NY, for Defendant.


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, thereby violating, inter alia, their Fourteenth Amendment equal protection rights. Plaintiffs also asserted 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. By Memorandum & Order dated November 21, 2011, the Court dismissed the Complaint but granted plaintiffs leave to move to amend. Presently before the Court is plaintiffs' motion, made pursuant to Federal Rule of Civil Procedure (" Rule" ) 15, seeking to file an Amended Complaint. For the reasons set forth below, plaintiffs' motion is denied.


The following facts are taken from the proposed Amended Complaint (" Am. Compl." ), including the exhibits attached thereto,[1] and are presumed true for purposes of this motion.

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" ). (Am. Compl. ¶¶ 1-4.) The Village is a municipal corporation duly organized and existing under the laws of the State of New York. ( Id. ¶ 6.) [2]

The area surrounding the Property consists of one public road and several private, " non-thru" 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 the 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 and has never been maintained by Bayville, the County of Nassau, or the Town of Oyster Bay." ( Id. ¶ 22.)

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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] as a private non-thru street, projecting north and intersecting with three other non-thru streets— Saltaire Lane, Washington Avenue and Arlington Lane." ( Id. ¶ 24.) In other words, for thirty-six years prior to April 21, 2009, these three private " non-thru streets," 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 Supreme Court Justice Kenneth A. Davis. Justice 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." (Am. Compl., Ex. A at 1, 4.) More specifically, the Village sought to have the Disputed Area of the Property (which Justice 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, Justice Davis rendered a decision on the parties' motions for summary judgment in the State Court Action. (Am. Compl., Ex. A.) 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, Justice Davis concluded that Shore Road, which " was originally a private right of way," ( id. at 1), had not been " dedicated to the Village of Bayville as a public street," ( id. at 7), and had " not become a public street by prescription" ( id. at 8). The court noted, however, that " a public nuisance may also exist on private property, if the property, health or safety of a

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considerable number of persons is effected." ( Id. at 9.) Justice Davis ultimately concluded that: " [T]he erecting of the barricade on Shore Road was a substantial interference with the health and safety of residents south of the barricade because it interfered with their rights to fire protection and also police, ambulance, and other emergency services." ( Id. ) The court also found that the barricade " also interfere[d] with ...

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