Opinion
2013-04-3
In the Matter of MIDDLETOWN & NEW JERSEY RAILROAD, LLC, petitioner-respondent, v. STATE of new york DEPARTMENT OF TRANSPORTATION, respondent-respondent; Howard Shapiro, nonparty-appellant.
Mark D. Stern, Goshen, N.Y., for nonparty-appellant. Capehart & Scatchard, P.A., New York, N.Y. (John K. Fiorilla and Joseph R. Zakhary of counsel), for petitioner-respondent.
Mark D. Stern, Goshen, N.Y., for nonparty-appellant. Capehart & Scatchard, P.A., New York, N.Y. (John K. Fiorilla and Joseph R. Zakhary of counsel), for petitioner-respondent.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek, Laura R. Johnson, and Andrew W. Amend*784of counsel; Jan Messerschmidt on the brief), for respondent-respondent.
In a proceeding pursuant to Railroad Law § 91 to compel the discontinuance of a grade-level railroad crossing, nonparty Howard Shapiro appeals from a determination of the State of New York Department of Transportation, dated December 23, 2010, which changed the status of the grade-level crossing of Hoops Road over the tracks of the Middletown & New Jersey Railroad, LLC, in the Town of Wawayanda, at approximately Mile Post 4 (USDOT # 841 092L), from public to private.
ADJUDGED that the determination is confirmed, without costs or disbursements.
Contrary to the appellant's contention, he received adequate notice of the proceedings, as he was apprised of the time and place for hearing the petition and was provided reasonable notice thereof ( seeRailroad Law § 91). Moreover, the determination was not founded upon erroneous legal principles or contrary to the clear weight of the evidence ( seeRailroad Law § 91; Matter of County Exec. of County of Rensselaer v. New York State Dept. of Transp., 189 A.D.2d 984, 985, 592 N.Y.S.2d 840;Matter of Boston & Albany R.R. Co., 64 App.Div. 257, 260, 72 N.Y.S. 32,affd.170 N.Y. 619, 63 N.E. 1115;cf.Railroad Law § 97[1][c], [d] ).
The appellant's remaining contentions are without merit.