Opinion
No. 51640/2015.
08-02-2016
VILLAGE OF MAMARONECK and the Board of Trustees of the Village of Mamaroneck, Plaintiffs, v. Rubin CRAIG, Deborah Craig, Cosimo Panetta, Mirella Panetta, Keisha Brescia, Rana Altinbas, Margaret Archer, George Archer, Alexander Rainert, Karen Rainert, Laura Mazzotti, Michael Schneider, Stuart Tiekert, Charles Morelli, Ann Morelli and 130 Beach Avenue Condominium Association, Defendants.
McCullough, Goldberger & Staudt, LLP, attorneys for plaintiff Village of Mamaroneck. Rana Altinbas, Stuart Tiekert, Charles Morelli, Ann Morelli, Newman Ferrara LLP, attorneys for appearing defendants.
McCullough, Goldberger & Staudt, LLP, attorneys for plaintiff Village of Mamaroneck.
Rana Altinbas, Stuart Tiekert, Charles Morelli, Ann Morelli, Newman Ferrara LLP, attorneys for appearing defendants.
LAWRENCE H. ECKER, J.
The following papers numbered 1 through 103 were considered on the motion of the Village of Mamaroneck and the Board of Trustees of the Village of Mamaroneck (herein collectively “the Village”), made pursuant to CPLR 3212 [Mot. Seq. # 1], for summary judgment on its action for a declaratory action, and dismissal of the counterclaims, and the motion of the appearing defendants Rana Altinbas, Stuart Tiekert, Charles Morelli, Ann Morelli, and 130 Beach Avenue Condominium Association (herein “the appearing defendants”, “the defendants” or “the Association”), made pursuant to CPLR 3212 [Mot. Seq. # 2], for dismissal of the complaint, and summary judgment on the three counterclaims:
PAPERS/NUMBERED
Notice of Motion, Affirmation, 1–39
Affidavit, Exhibits A–II , Memorandum of Law
Affirmation in Opposition, Exhibits 1–42 40–83
Memorandum of Law
Affirmation, Exhibits 1–5, Affidavits [3], 84–94
Reply Memorandum of Law
Reply Affirmation, Exhibits A–H 95–103
Court rules require plaintiffs to use numbered exhibit tabs and defendants to use lettered exhibit tabs. Defendants are advised that the court requires external exhibit tabs; the absence of same in courtesy copies provides little assistance to the court, when called upon to review voluminous submissions.
Upon the foregoing papers, the court determines as follows:
This action was commenced by the Village seeking a declaratory judgment that Pine Street is a public street within the Village. The appearing defendants are residents of the three unit condominium owned by the Association. All other named defendants were served with process, but did not appear or answer. The defendants are the owners of three units contained within the Association's building, which is known as 130 Beach Avenue, Mamaroneck, New York. The property of the Association is located on the southeast corner of Beach Avenue and Pine Street. There is no dispute that Beach Avenue is a public street. The dispute in issue centers upon the legal status of Pine Street.
The defendants oppose this action, and assert three counterclaims, the first of which seeks to ify the commencement of this action as not having been authorized in accordance with the Public Officers Law, Article 7 (known as the “Open Meetings Law” or “OML”). The second and third counterclaims allege violations of defendants' federal and state constitutional rights, pursuant to 42 USC § 1983.
The History of Pine Street:
The documentary evidence submitted by plaintiff shows the derivation of Pine Street is found in an 1894 subdivision map filed in the Westchester County Clerk's Office, Division of Land Records on November 15, 1895 (Volume 10, Page 74)—“The Tompkins Farm Map” [Pltf's Ex. E]. That map laid out the building lots on property owned by the estate of Noah Tompkins, and included the laying out of the streets that would provide ingress and egress to the newly created lots, including a street identified as Maple Street, with no reservation of rights to the right of way by the common grantor of the abutting lots.
There is no dispute that Maple Street is now Pine Street.
In a Memorandum, dated May 2, 1968 [Pltf's Ex. H], from E.A. Langerfeld, Village Engineer to R.C. McDonell, Village Manager, subject “Status of Pine Street”, Langerfeld states the village records show Pine Street has never been dedicated or accepted by the Board of Trustees { “BOT”]. That Memorandum references the filed Tompkins map, and represents that Pine Street was used as a public street for more than five years prior to March 2, 1938, therefore meeting the requirements of former Section 179–O of the Village Law, now Village Law § 7–736. As a public street, the Village is empowered to authorize the construction of a municipal street, utility, or improvement in or under the street.
Village Law § 7–736[1] provides “No municipal street utility or improvement shall be constructed by the village in any street or highway until it has become a public street or highway and is duly placed on the official map or plan; except that the board of trustees may authorize the construction of a public municipal street utility or improvement in or under a street which has not been dedicated, but which has been used by the public as a street for five years or more, prior to March second, nineteen hundred thirty-eight, and is shown as a street on a plat of a subdivision of land which had been filed prior to March second, nineteen hundred thirty-eight, in the office of the county clerk or register of the county in which the village is located [Pltf's Ex. W].
A Memorandum from the Village Manager, dated February 3, 1986 [Pltf's Ex. I], subject “Garbage Pickups—Private Property” lists the private streets in the Village where there is municipal garbage pickup. Pine Street is not included in this list.
A Memorandum from the Village Manager, dated June 22, 1987, with enclosures [Pltf's Ex. J], bears a notation that a certain large red oak tree is on Village property.
The BOT meeting minutes of January 28, 1994 [Pltf's Ex. K] declared that certain streets within the Village, including Pine Street, have “safe and adequate access according to Village Law No. 7–736.”
The minutes of a Planning Board meeting held on November 29, 2001, in connection with SEQRA and the approval of the construction of two residences on lots across Pine Street from the Association's property, makes the finding that “Pine Street is presently on the Official Map of the Village of Mamaroneck and is a public road.” [Pltf's Ex. L, ¶ 1].
In 2001, the Village set forth requirements and supervised the construction of a sanitary sewer line, water line and other improvements under Pine Street, while preserving the Red Oak Tree [Pltf's Exs. M, N, O and P].
In an application to the Zoning Board of Appeals (“the ZBA”), the Association requested an area variance regarding insufficient off-street parking with the ZBA minutes referring to the Association “c/o Charles Morelli (appearing defendant).” On March 3, 2005, the area variance was granted, based upon the Association attorney's representation that the Association's parking area “extended approximately a foot and a half to 2 feet into the right-of-way.” [Pltf's Ex. R, p. 8]. As a condition of the grantting of the variance, the ZBA resolution required the Association to resolve the encroachment of the parking area onto the Village right of way to the satisfaction of the BOT.
The Association thereafter, by document dated May 1, 2007 [Pltf's Ex. S], entered into a License Agreement, with the Village, relative to the encroachment on to “the surface area of Village-owned property along Pine Street ...”
A June 27, 2005 letter from appearing defendant Tiekert (“Tiekert”) to the Village manager [Pltf's Ex T], regarding drainage issues, refers to Pine Street as “a new public street ...” Two other letters from Tiekert to Village officials, dated February 12, 2006 and January 23, 2003, reference Pine Street and imply it is a public street. [Pltf.'s Ex. T].
The underlining is as appears in the letter.
A letter to the BOT from Stuart Tiekert to the Mayor and BOT, dated March 26, 2007 urge the Village to act “to correct the unacceptable conditions on Pine Street” [Pltf's Ex. V]
In connection with the abatement of flooding in the area of Pine Street, the Village received a federal EPA grant, for the construction of a storm sewer drain for Pine Street [Ex. Y]. The BOT awarded the contract for this work and the expenditure of $273,550 in public funds, by resolution dated May 14, 2012 [Ex. Z].
Other indicia that Pine Street has been considered by the Village as a public street include:
—inclusion on a list of Rye Neck Section catch basins [Pltf's Ex. BB];
—Village street sweeping schedule showing street sweeping is performed on Pine Street [Pltf.'s Ex. CC];
—the New York State Department of Transportation listing of local public roads in the Village [Pltf's Ex. DD];
—reference to Pine Street being a public street in a memorandum decision by Hon. Vincent L. Briccetti, USDJ, in Panetta v. The Village of Mamaroneck , dated February 28, 2012 [Pltf's Ex. EE, page 2];
—the Village maintains “No Parking” signs on Pine Street and issues parking tickets for parking in prohibited areas and for obstruction of a fire hydrant [Pltf's Ex. FF].
Stuart Tiekert and Charles Morelli were defendants in the federal action.
On June 6, 2012, appearing defendants Morelli and Tiekert initiated an Article 78 proceeding in this court under Index No. 3371/12 seeking to enjoin the Village from proceeding with drainage work on Pine Street, alleging irreparable harm to the Red Oak Tree within the Village right of way [Pltf's Ex. HH].
In February, 2014, in connection with a federal action commenced by Tiekert against the Village, the parties signed a Stipulation of Settlement where, in connection with a civil rights claim asserted by Tiekert that was resolved, the collateral claim of ownership and use of Pine Street by him was withdrawn without prejudice. The Village submitted an affidavit from Tony Iacovelli, General Foreman of the Village's Department of Public Works, confirming facts relative to the Village treating Pine Street as a public street since at least 2001, including the Village regularly performing street sweeping services, snow removal services and other routine maintenance on Pine Street as a public street.
It is upon this documentary evidence, and in support of its motion for Summary Judgment, the Village asserts (1) Dedication of Pine Street has occurred through relinquishment by the grantor and acceptance by the Village, and (2) Pine Street is a public street based on its public municipal use in excess of ten years pursuant to Village Law § 6–626.
In opposition and in support of their cross-motion for summary judgment, the appearing defendants submitted Tiekert's affidavit, as president of 130 Beach Avenue Condominium Association, who has resided at the property since 1983. He, and Morelli and Ann Morelli, reside in the two units in the main building; Rana Altinbas resides in the carriage house behind the main building. Tiekert describes the boundary line between the Association property and Pine Street as being 234 feet, and Pine Street as a short dead end used only by the adjacent property owners, which he knows according to his personal observation for 32 years. It is only since 2002 that two residences were built on the other side of Pine Street, with a third one added in 2013 [Tiekert Aff., ¶ 7–10].
Tiekert next addresses whether there was proper authorization by the Village Board of the present litigation that was filed on February 6, 2015. He states he learned of it from a neighbor on February 14, 2015 after which point he contacted Leon Potok, a member of the BOT, by email, inquiring as to when the BOT authorized the commencement of this action. Potok responded, “No vote to pursue legal action. Therefore, you won't find it in the minutes. It's an administrative action by the Village Manager.” [Defts' Ex. 18]. Tiekert attended the BOT meeting on February 23, 2015 and voiced his concern that he and the other Association neighbors had not as yet been served with process in this action, and the commencement of this action was undertaken without BOT approval, as there is no evidence in the minutes that a vote was ever taken by the BOT, while in executive session or otherwise [Ex. 20].
In paragraphs 18–21 of his affidavit, Tiekert speaks of dialogue between him, the village administrator and the village attorney regarding the commencement of this action. The court was unable to locate this in the minutes [Ex. 20].
Tiekert was served with process on March 9, 2015. Accompanying the summons and complaint was a “Notice to Defendants”, signed by the Village's attorneys, advising that this Declaratory Judgment action was not a demand for money damages, but rather an action seeking to resolve that Pine Street is a public street in the Village [Defts' Ex. 22].
In his affidavit, as proof that Pine Street is not a public street, Tiekert states that Pine Street, prior to 1993, was completely undeveloped, “little more than a dirt path”, and not used by anyone other than residents of 130 Beach Avenue, to access their parking area, and for a homeowner on Melbourne Avenue, one street over, to access his garage, with no utilities or signage. In 1993 an application was approved for the construction of a single family home on the north side of Pine Street, across from the Association property. The Village performed no maintenance other than occasional snow removal, as he understood was the practice for public and private streets. Garbage pickup for homes on the north side of Pine Street followed. There was no street cleaning by the Village until the commencement of this action, and that previously, the Association performed its own street maintenance. The “no parking” signs were put up in 2002 following the approval of the new residences, to assure emergency vehicle access [Tiekert Aff., ¶ 26–35].
Tiekert states he and neighbors filed objections to the ZBA approval of the first new residence on the north side of Pine Street, as the street was not “suitably improved” to sustain the new construction; that it was his understanding that “suitably improved” was not the same as a public street accepted by the Village, referring to an opinion from the Village Attorney to the Village Manager [Defts' Ex. 34]. Due to their concern about drainage issues along Pine Street, the Association members filed an Article 78 proceeding against the ZBA, which held up construction pending the determination of the adequacy of the remediation of the drainage problems [Tiekert Aff., ¶ 36–40]
See Village Law § 7–736[2].
In 1997 applications were filed for the construction of two residences on the north side of Pine Street. Tiekert and his neighbors monitored the progress of these applications to make certain that an adequate drainage system was installed. He protested to Village officials that the drainage issues were not being suitably addressed. In May, 2003, a Certificate of Occupancy was issued for one of the two new residences, while Tiekert continued to protest the issuance of the second certificate of occupancy, “with obvious signs of animus from both the developers and many Village officials who wanted the public scrutiny, criticism and controversy over Pine Street to end.” [Tiekert Aff., ¶ 41–55].
In September, 2004, the Association was issued an appearance ticket alleging a code violation for a portion of the driveway encroaching into Pine Street. A neighbor on the other side of Pine Street was not cited for the same infraction. In July, 2005, the Association was advised by the Village that its parking area was too narrow, and that an area variance was required. As addressed, supra, the area variance was granted, conditioned upon the execution of the Licensing Agreement. The Association, notwithstanding their representation by counsel, relied upon the representations of the Village as to the need for the area variance and the execution of the License Agreement [Tiekert Aff., ¶ 56–62].
Between 2006 and 2009, there was litigation between the Village and the builder of the residence still awaiting receipt of the Certificate of Occupancy, resulting from the failure of the builder to satisfactorily address the drainage issue on Pine Street, a matter of great concern to Tiekert. In 2009, there was a change of elected officials and the appointment of a new village attorney. According to Tiekert, prior to the discharge of the former Village Attorney, he warned the owner of the residence in dispute that his failure to suitably remedy the drainage issue would result in a revocation of the Temporary Certificate of Occupancy. In 2010 the Association was concerned that the flooding conditions would worsen, and that public funds would be expended to pay for the additional improvements. At the same time the builder threatened to sue the Village, for which the Village blamed the Association's members.[Tiekert Aff., ¶ 63–77]
The builder filed its action against the Village in 2011. The BOT met in closed door executive sessions “to seek a way to relieve the builder of the responsibility and financial burden of making the necessary improvements to Pine Street”, through a “public works project”, which was a problem unless Pine Street was a public street. Tiekert states “I publicly questioned whether the use of public monies to install the drainage system on Pine Street would constitute a gift' to the builder.” It is for this reason that Tiekert opines the Village began, “for the first time”, to affirmatively take steps to assert Pine Street was a public street. [Tiekert Aff., ¶ 78–86].
On May 14, 2012, the BOT passed a resolution awarding a contract for “municipal drainage improvements” to Pine Street and assumed responsibility for the project. It was at that time that Tiekert and others filed the Article 78/TRO proceeding regarding the Red Oak Tree, supra. He describes allegations going back and forth between the litigants relative to the claim by the Village Manager that Tiekert was interfering with the drainage construction, and mis-statements that evince the Village Manager's animus toward him. The TRO was denied and the action rendered moot based upon its completion [Tiekert Aff., ¶ 87–96]
As a result of that action, Tiekert and others began their own investigation as to the status of Pine Street, concluding that it was not a public street, but rather owned by the abutting property owners. On the basis of that conclusion, Tiekert filed a Notice of Claim with the Village on June 27, 2012, for damage inflicted to the Association property due to the construction of the drainage improvement project. He also advised the Village that the License Agreement was not enforceable as the product of mutual mistake. [Tiekert Aff., ¶ 99–103]
Tiekert describes what he characterizes as the animus between the Mayor, the Village Manager and him, as a result of the ongoing dispute regarding the ownership of Pine Street. As an example, on September 12, 2011, at the BOT meeting, the Mayor told Tiekert he could not make a public comment. On July 16, 2012, the Mayor prevented him from making a public comment at a BOT meeting because he had filed a Notice of Claim against the Village, and the Pine Street matter was in litigation. When he tried to address the BOT, the Mayor ordered a police officer to escort him from the podium. Some time thereafter, he received a letter from the Village Manager to the Association seeking back payments for the License Agreement, and proof of insurance, with an advisement there would be a review of the license fee based upon market analysis. This had not occurred previously and no other property owner is required to enter into a licensing agreement relative to encroachments. [Tiekert Aff., ¶ 104–126].
After Tiekert was removed from the BOT meeting on July 16, 2012, he filed the federal lawsuit alleging his First Amendment rights had been violated when he was prevented from speaking at the meeting. As stated, supra, in conjunction with that action, he sought a resolution of the Association's rights to Pine Street, to the center line of the street, including the area of the parking lot, which if established, would obviate the need for the License Agreement, together with damages to their property resulting from the drainage work done within the roadway. The federal action was settled with Tiekert receiving a monetary settlement from the Village without an acknowledgment of wrongdoing, and he consented to the dismissal of the Pine Street claims, without prejudice [Tiekert Aff., ¶ 117–120].
To corroborate their claim, the Association submitted the affidavit of John M. Hofstetter, a member of the BOT from 2006–2010. He states he was aware that the Village picked up the garbage on North and South Roads and Nautilus Lane; the Village plowed private roads for safety and health reasons; he believed that practice was improper and communicated this to Village officials, as an improper expenditure of Village funds; the Village did perform paving and maintenance on private streets; and the services provided on private streets constituted a prohibited gift of public funds.
In Opposition and in Reply, the Village alleges the appearing defendants have provided no proof that Pine Street is a private street by way of a title insurance search, and nothing to support their refusal to comply with or renew the 2007 license agreements acknowledging Pine Street is a public street. Most recently, the Village contends the appearing defendants have ratified that Pine Street is a public street by having filed a “Notice of Defect–Pine Street icing”, pursuant to Village Law § 4–402(g) [Ex. 2 to Affirmation], by Tiekert's deposition testimony, together with the Association's acceptance of the Village's maintenance of the catch basins and maintenance of the Red Oak Tree in the right-of-way.
The Village points out that the Association has never come forward to protest the improvements to Pine Street or withdrawn their demand that the Village cure the drainage problems. As to the former Village Attorney's opinion letter [Defts' Ex. 34], the need to improve the street is a separate and distinct issue from ownership of the street.
A second affidavit submitted by Tony Iacovelli, from the Village's DPW., states that the Village began performing street cleaning activities on Pine Street in 2002, and not 2012, as alleged by Tiekert; the limited amount of money spent by the Association to repair ruts in the roadway could only have been for the entire roadway adjacent to their property, as the License Agreement required the Association to maintain the area of the parking lot only for a slender strip of land within Pine Street; and that the Notice of Defect as to the icy condition, sent to the Village by the Association confirmed the Association's recognition that Pine Street is the Village's responsibility as a public street.
In short, the Village asserts all actions undertaken by the BOT, the Village employees, and the ZBA, as acceded to by the appearing defendants, requires the finding by the court that Pine Street is a public street.
The Commencement of the Present Action
As a threshold matter, the appearing defendants complain the commencement of this action was not lawfully authorized pursuant to the applicable provisions of the “Open Meetings Law”. They assert the Association is aggrieved, for had the Village approached the Association in advance of the commencement of this action, the Association could have worked with the Village to resolve the issue of the ownership of Pine Street, and the drainage issues, and that would have avoided the incurring of legal fees by them and the Village. They contend it is due to the secretive and improper way in which this action was commenced that the Association has been compelled to incur the expense of retaining counsel to protect their interests.
The court must determine whether Article 7 (Public Officer's Law, Sections 100 –111 ) has been violated, and if so, is the commencement of this action nevertheless lawful. The Legislature has proclaimed in the preamble to the statute, “(I)t is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.” [POL § 100 ]. The provisions of the Open Meetings Law are to be liberally construed in accordance with the statute's purposes. Gordon v. Village of Monticello, 87 N.Y.2d 124, 126 [1995].
Defendants cite Town Law § 65, General Construction Law § 41 and Article 7 of the Public Officers Law in support of their argument that the Open Meetings Law was violated in that there was no public vote taken authorizing the commencement of this declaratory judgment action. Initially, the court finds the reference to Town Law § 65 is misplaced and not applicable to a village such as the Village of Mamaroneck. As such, the delegation of the powers conferred by state law to the Village Mayor and Board of Trustees is governed by Village Law § 4–400 [Mayor], which provides, inter alia, at (1) that “(I)t shall be the responsibility of the mayor (d) to institute, at the direction of the board of trustees, all civil actions in the corporate name of the village ...” General Construction Law § 41 [Quorum and majority] sets forth the manner in which votes are to be taken by public officers, and the requirement of majority rule.
The Village does not deny that the action taken to adjourn to Executive Session on November 10, 2014 was done without having specified the purpose for the adjournment, as required by statute. POL § 105[1]. The Village does not deny that the minutes of the Executive Session where the vote to commence this action was taken were not included in the BOT minutes. See POL § 106[1]. The minutes of the meeting of the BOT [Defts' Ex. 26, at page 14] state “EXECUTIVE SESSION: On motion of Mayor Rosenblum, seconded by Trustee Bermudez: RESOLVED that the Board convene to Executive Session in accordance with Open Meetings Law Section 105(d) and (f). Ayes: Bermudez, Miller, Potok, Santoro, Rosenblum, Nays: None. This appears to be the last item taken up by the BOT that evening as the next entry in the minutes is the motion to adjourn the meeting.
The Village submitted a handwritten document [Gurahian Reply Affirm., Ex. 4], dated “11/17/14” that is alleged to show that there was a confirmatory vote taken to commence the Pine Street litigation, approved by all of the members of the BOT and the Mayor at that time. Included in that vote was that of Trustee Potok, who in his deposition testified in contradiction that there was no motion; no second, and no vote to authorize this litigation [Deft., Ex. 25, pp. 48, 77]. In an email responding to Tiekert on the subject of authorization for the litigation, Potok wrote “Board authorized in executive session. Haven't checked if in minutes.” [Potok email, February 19, 2015, Deft.'s 18].
There are discrepancies in this record as to when the vote was first taken for the approval of the commencement of this action. A one page document signed and certified by Agostino A. Fusco, Clerk/Treasurer, dated April 29, 2015 as an “Extract of Minutes of a Board Meeting” states the Board, including Potok, unanimously passed a resolution authorizing the commencement of a declaratory action against all property owners with an alleged interest in Pine Street in order to judicially determine that Pine Street is a public street owned and controlled by the Village of Mamaroneck; that the vote was taken at the November 10, 2014 Board Meeting. Below this on the same page, it states “this resolution corrects and amends the minutes of the November 10, 2014 Board Meeting” in that “the resolution was inadvertently omitted from the minutes of the meeting .” [Resolution, April 29, 2015, Deft.'s 30].
The BOT continued in its effort “to cure any alleged defect” by still another resolution on November 9, 2015. The meeting agenda for the November 9, 2015 meeting lists under Old Business “Resolution to Ratify Authorization to Seek Declaratory Judgment regarding Pine Street” [Defts' Ex. 31]. The BOT minutes of that meeting disclose the passage of a resolution by the mayor and trustees, including Potok, ratifying the commencement of this action, as originally acted on and approved on November 9, 2014, in executive session (emphasis added), rather than at a public meeting. The November 9, 2015 resolution “seeks to cure any alleged defect that the failure to vote at public meeting might engender without making an admission of any kind and without prejudice to its defenses in the pending litigation.” [Gurahian Affirmation (Reply), Ex. 5]. The resolution further recognized the commencement of this action, the names of the defendants who have appeared, and their assertion of the three counterclaims. It is noted that Trustee Potok voted in favor of this resolution, as he did on the vote taken by the BOT in executive session on November 10, 2014.
Appearing defendants assert that the commencement of this litigation on February 6, 2015 is void due to the failure of the BOT to comply with the Open Meetings Law (POL, Article 7). When there is such a violation, the court is empowered, in its discretion, to declare void any action taken by a public body in violation of the mandate of this legislation. Matter of New York University v. Whelan, 46 N.Y.2d 734 [1980]. However, it has been said that if a public board violated the OML by, among other things, going into executive session without stating, with specificity, the necessity of doing so, the board's action is not “void, but, rather voidable, upon good cause shown.” Oakwood Property Management, LLC v. Town of Brunswick, 103 AD3d 1067 [3d Dept 2013].
The court must consider whether the resolution of the BOT, made on November 10, 2014 in executive session, and ratified on November 9, 2015, is a permissible act, such that in the absence of a showing of prejudice to defendants, the enactment of the resolution stands as a lawful exercise of the BOT's powers, with no reason to annul same. See Town of Moriah v. Cole–Layer–Trumble Company, et al. 200 A.D.2d 879, 881 [3d Dept 1994].
The court finds that the conduct of the BOT, albeit not strictly compliant with the OML, was not so egregious that there is justification to invalidate their actions, despite the allegations of defendants to the contrary. See POL § 107[1] ; Cunney v. Board of Trustees of the Village of Grand View, 72 AD3d 960 [2d Dept 2010] ; Roberts v. Town Board of Carmel, 207 A.D.2d 404 [2d Dept 1994] ; Matthes v. Town of East Fishkill, 785 F.2d 43 [2d Cir1986]. There has been no showing by the appearing defendants how individually or as the Association, they have been prejudiced by the retroactive authorization for the commencement of this action by the BOT. They argue that had they been afforded the opportunity, they would have appeared at a public meeting to lodge their protest to this action. However, the issue in dispute here has been ongoing for more than twenty years. In 2014, when the federal action was settled, Tiekert reserved his rights to institute litigation against the Village as to the very same issue now before the court, namely, the legal status of Pine Street. Tiekert submits he first found out about this lawsuit in February, 2015, before he was served, and that after learning from his neighbors of the lawsuit, he questioned Trustee Potok. It was then that Tiekert and the other appearing defendants became aware that there may have been a defect in the procedure taken by the BOT relative to the authorization given to the Village Attorney to commence this action. Notwithstanding, at that time he, or any other affected party, was entitled to initiate an Article 78 action against the Village, pursuant to POL § 107 [Enforcement], but failed to do so.
It is abundantly clear that the status of Pine Street must be adjudicated and the issue finally put to rest. Defendants contested the issue of the Red Oak Tree, but withdrew that action when the construction on Pine Street was completed without damage or disturbance to the tree. Defendants have not instituted a taxpayer's waste suit to contest the use, in 2012, of public funds to pay for the flood remediation work on Pine Street. The statute of limitations for a taxpayer suit is three years. See Espie v. Murphy, 35 AD3d 348 [2d Dept 2006]. Defendants acceded to the authority of the ZBA in 2005, without contesting same, when they sought and received the area variance for their parking, and agreed as a condition of the variance to enter into the Licensing Agreement. They now claim they did so due to mutual mistake as to the legal status of Pine Street. However, it is only they who claim mistake, as it has been shown by the Village that Pine Street has been considered a public street since at least 1933. There is no mutual mistake when only one party claims mistake. The time to contest the authority of the Village to require the area variance, and the Licensing Agreement has passed.
This finding is critical to the analysis as to whether there is cause to overturn the vote of the BOT taken to authorize this declaratory judgment action. The history of this matter belies the statements by Tiekert, at ¶ 125 and ¶ 126 of his affidavit, that “(W)e would have sought to negotiate a resolution that would resolve the ongoing flooding problems on Pine Street and give us undisputed ownership and control of our parking area. Because of the secretive and improper way this legal action was commenced against us, we were required to incur the expense of retaining an attorney to protect and represent our interests.” Whether that is so or not does not provide a reason for this court to ify the vote taken to authorize this action.
That this matter was not settled years before is unfortunate, and costly to the Village and defendants. That is not, however, just cause to vitiate the action of the BOT in authorizing the commencement of this action. Further, that the BOT recognized that the initial vote may not have been in compliance with the OML, and that they then adopted the resolution in an appropriate fashion, is not fatal to the vote. Town of Moriah v. Cole–Layer–Trumble Company, supra, (Town Board's initial failure to comply with OML when it authorized lawsuit in executive session, and then passed subsequent resolution retroactively at a regular meeting ratifying the Board's earlier action was sufficient to deny defendant's Article 78 proceeding as retroactive vote was enforceable).
In view of the foregoing, the court finds defendants have failed to demonstrate there has been a blatant disregard of the public's right to be informed of the actions of their public servants, or that they have been prejudiced by the technical deficiencies, now cured. To the contrary, the court finds that the commencement of this action was duly authorized pursuant to Village Law § 4–400[1][d]. Accordingly, defendants' second affirmative defense, and first counterclaim, are dismissed.
Pine Street is a Public Street
As addressed, supra, the genesis of Pine Street is derived from the Tompkins Farm subdivision map of 1894 [Ex. E], that laid out the lots abutting what was then designated as Maple Street. The part of defendants' property used for their parking lot, and that encroaches on Pine Street, measures approximately 7 feet by 52 feet [Ex. S]. In the License Agreement [Ex. S], defendants signed and acknowledged that they were granted the “license and privilege to utilize the surface area of Village-owned property along Pine Street ...” In ¶ 10 of the License Agreement, the Village retained the right, in its sole judgment, to make alterations, additions, improvements or betterments.
Contrary to defendants' argument, this is not a case of mutual mistake. Proof of mutual mistake must be of the highest order, and must show clearly and beyond doubt there has been a mutual mistake and must show with equal clarity and certainty the exact and precise form and import that the instrument ought to be made to assume, in order that it may express and effectuate what was really intended by the parties (internal citations omitted). Asset Management & Capital Co., Inc. v. Nugent, 85 AD3d 947 [2d Dept 2011].
The appearing defendants have not carried their burden in this regard, when weighed against the evidence submitted by the Village in support of its claim of ownership to Pine Street. The documentation, the supporting affidavits, when taken together with the area variance and the License Agreement, not appealed by the appearing defendants, does not speak of a mistake on the part of the Village. The document signed by the parties is clear and unequivocal, as to its representations, and the allocation of the responsibilities of the parties thereunder. The court finds that the appearance before the ZBA, coupled with the License Agreement, constitutes an estoppel as against defendants, rather than a mutual mistake supportive of the non-appearing defendants' position.
Estoppel is not generally available against a municipal defendant with regard to the exercise of its governmental functions. However, an exception to the general rule applies in extraordinary circumstances involving the wrongful or negligent conduct of a governmental subdivision, or its misleading nonfeasance, which induces a party relying thereon to change his position to his detriment resulting in manifest injustice (internal citations omitted). Laws Construction Corp. v. Town of Patterson, 135 AD3d 830 [2d Dept 2016]. The court finds there is no proof in this record to make such a finding.
The record demonstrates the conduct of the Village since 1994, as to construction of the residences across from defendants' property on Pine Street, has conformed with the requirements of Village Law § 6–626 [Streets by prescription] which provides “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.” Tiekert asserts that the street was used only by the residents whose properties abut Pine Street; however, it is not traffic flow or pedestrian use that controls, as long as the roadway is open to the public. This has not been disputed. The appearing defendants have accepted the improvements to Pine Street, paid for by the builder of the new homes, or by public funds. The work done may not have met their full approval, but nevertheless, they have benefitted by what has been done.
The appearing defendants have not brought an action to enjoin the work being done since 1994, other than the action brought to protect the Red Oak Tree, which was withdrawn upon completion of the road construction. They have not brought an action in trespass, nuisance or any other cognizable claim to declare their exclusive ownership of Pine Street, other than Tiekert's claim ancillary to his settled civil rights action, which he discontinued following settlement. He apparently filed a Notice of Claim regarding damage to the roadway but did not follow through by bringing an action. The court assigns no probative value that the appearing defendants were served in this action some time after the other named defendants were served, or that other named defendants have elected to default in appearing or answering. The inference that can be drawn by their not appearing is that they have no quarrel with the legal status of Pine Street being finally resolved by the court declaring it is a village street.
Village Law § 6–600 [Definitions] defines street, inter alia, to include highway, road, avenue, lane or alley which the public have the right to use. Village Law § 6–602 [Separate highway district] states “(T)he streets and public grounds of a village constitute a separate highway district and are under the exclusive control and supervision of the board of trustees or other officers of the village when such control is delegated to them by such board.”
The Tompkins Farm subdivision map [Ex. E] clearly depicted what was to be the street access to the newly created building lots. The appearing defendants have not shown that they took any action to cut off the public's right to traverse Pine Street since they (or specifically Tiekert) took title to their property in 1983. They have not attempted to barricade the street entrance, or erect “no trespass” signs, or provide public notice advising that Pine Street is private. During this same time period, the Village has undertaken specific acts that demonstrate it has exercised dominion and control of Pine Street, none of which has been legally prevented by the appearing defendants.
The court finds that a dedication of Pine Street to the Village has occurred. A dedication involves the appropriation of land for any general or public use. Dedication must be for the use of the public at large as distinguished from a use for a particular person only. Roma v. Jones, 115 N.Y.S.2d 189 [Sup.Ct., Nassau Co., 1952], citing In re Martin, 140 Misc. 327 [Sup Ct, Onondaga County 1931]. As stated in 11A McQuillin Mun. Corp. § 33:58 [3d ed.] :
Acts of acceptance may be shown either by direct or circumstantial evidence. If all the facts and circumstances, when taken and considered together, certainly and satisfactorily show that the public, or the authorities acting on behalf of the public, intends to accept the offer of dedication, an acceptance is proven. In those cases where it appears the property would not be beneficial to the public, stronger evidence of acceptance will be required than if it appears that the property would be beneficial. In other words, should the dedication appear beneficial and convenient to the public, acceptance will be implied from slight circumstances.
Upon this record, the court finds, consistent with Village Law § 6–626, that Pine Street, since no later than March 2, 1933 [Ex. H] ), has been considered a public street by the Village. As required by this statute, the road must not only be traveled upon, but it must be kept in repair or taken in charge and adopted by the public authorities. Marchand v. State Department of Environmental Conservation, 19 NY3d 616 [2012]. The court finds that the Village has satisfied this test, based upon the documentary evidence, the affidavits of Tony Iacovelli, the general foreman of the Department of Public Works, the actions of defendants in accepting the variance and confirming the status of Pine Street as a public street in the License Agreement, and their acceptance of the public improvements to Pine Street, intended to benefit all property owners in the affected area of the improvements, paid by public funds, without protest by them.
The evidence offered by defendants as to their maintenance of that part of the street used by them for their parking lot is consistent with their obligation to do so pursuant to the License Agreement. A road becomes a road when the public takes responsibility for maintaining and repairing it. Here, this has occurred for the requisite ten years. The filing of the Tompkins Farm map [Ex. E], without a notation showing an intention on the grantor's part to the contrary, demonstrates the grantor's intention that Maple Street, now Pine Street, was intended to be dedicated to the Village. See Village Law § 7–732 [4 ][a]. Thus, there has been a requisite showing by the Village, by statute and by common law, that Pine Street is a public street within the Village of Mamaroneck.
The party setting up the acceptance of a street for public use has the burden of proving due acceptance thereof. Golowich v. Union Free School District No. 8, Town of Greenburgh, 25 Misc.2d 867, 870 [Sup Ct, Westchester County 1960], cited in Winston v. Village of Scarsdale, 170 A.D.2d 672, 673 [2d Dept 1991]. The Village has sustained its burden of demonstrating this to be so. The court finds that the Village has accepted the dedication of Pine Street pursuant to common law, and pursuant to statute, namely Village Law § 6–626. Defendants' first, third, fifth, sixth, seventh, eighth, ninth and tenth affirmative defenses are dismissed.
The court assumes the fourth affirmative defense is asserted relative to the third counterclaim, to be addressed, infra.
The Village's motion for summary judgment, with the declaration that Pine Street is a public street within the Village of Mamaroneck, New York, is granted.
The Second Counterclaim
The appearing defendants allege that the unauthorized filing of the instant action without a duly enacted prior approving resolution, upon notice to the public, denied defendants their constitutional rights to express their opinions, concerns, and/or objections to the BOT. They argue that the Village intentionally sought to avoid public discussion of this matter, and met behind closed doors because the BOT knew, had a resolution to approve this litigation been duly noticed on an agenda, they would express their opinions publicly. They allege that some of the Village officials responsible for initiating this action have over the years publicly expressed animus towards Tiekert and other members of the Association. In particular, they alleged the BOT has openly criticized Tiekert, and have expressed an intent to chill Tiekert's right to freedom of speech, They further allege the Village engaged in intentional acts to exclude them from publicly expressing their views in retaliation for Tiekert and Charles Morelli's past public disagreements with issues involving Pine Street. In sum, on the second counterclaim, they state that the Village Attorney's public “exasperation” and “impatience” with Tiekert and Morelli motivated the Village to file a lawsuit without first providing a platform to express their opinion.
“Local legislators are absolutely immune from suit under 42 USC § 1983 for their legislative activities” (Bogan v. Scott–Harris, 523 U.S. 44, 49 [1998] ), and such immunity is applicable to all actions within the “sphere of legitimate legislative activity.” (Tenney v. Brandhove, 341 U.S. 367, 376 [1951] ). 24 Franklin Ave. R.E. Corp. v. Cannella, 139 AD3d 717 [2d Dept, 2016]. Here, the appearing defendants have not presented evidence sufficient to show that the BOT acted outside of the sphere of legitimate legislative activity. The court has made its findings, supra, that the BOT's vote authorizing the commencement of this action was not a violation of the OML. The court now finds that there is no proof in this record, as to this action, that the Village acted with “animus”, or with an improper motivation in remedying the deficiencies in their procedure, and thereupon taking the vote required to approve commencement of this action.
The court has been made well aware from the submissions that the relationship between the appearing defendants, particularly Stuart Tiekert, and members of the Village governance, has been, at times, fractious. However, the fact that the Village has shown “exasperation” and “impatience” with Tiekert and Morelli, as they allege, is not a sufficient showing that the conduct of the BOT, in bringing this declaratory judgment action, was motivated by an intention to prevent the exercise of freedom of speech. It is true that Tiekert received a monetary settlement from the Village in 2014 based upon a civil rights lawsuit that he brought in the Federal District Court. That matter has been litigated and settled, without an admission of liability on the part of the Village. That settlement is not probative of what has occurred here, namely, the desire of the Village to put to rest the legal status of Pine Street. This is a justiciable controversy that rightfully begs to be resolved at this time, which in essence, is the very nature of a declaratory judgment action.
Upon review of the submissions of the parties, in the light most favorable to the appearing defendants, the court finds there is no issue of fact that requires the second counterclaim to proceed to trial. Their cross-motion for summary judgment as to this issue is denied, and the Village's motion for summary judgment, and to dismiss the second counterclaim, is granted. Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986].
The Third Counterclaim
The appearing defendants allege, by a third counterclaim, that their Fourteenth Amendment rights to equal protection of the laws and substantive due process have been violated because they have been unlawfully singled out by having been required to execute the License Agreement when other named defendants, whose property encroaches onto Pine Street, were not. They allege that named defendants Margaret Archer and George Archer unconditionally utilize a paved parking area on Pine Street, while the Association have been held to the License Agreement. They aver that this fact is sufficient to show the Village has singled them out and treated them in a disparate fashion than other, similarly situated property owners, and that this was done with no rational basis, based upon impermissible considerations.
The defendants assert their substantive due process rights were violated by the Village's filing of this declaratory judgment action without providing notice and their being afforded the opportunity to first be heard. In their Reply papers, they allege a property interest in that portion of Pine Street abutting their parking area, in the funds expended by the Village, in the license fee and insurance coverage required of them pursuant to the License Agreement. They allege having been singled out to execute the License Agreement, thereby constituting an infringement upon their property rights that is arbitrary and irrational, particularly when coupled with the evidence they offered to show the Village's animus against them.
To succeed on its substantive due process claim, the appearing defendants must show there is a cognizable property interest, and a governmental action taken without legal justification. Bower Associates v. Town of Pleasant Valley, 2 NY3d 617 [2004]. An equal protection violation may be found where a person is selectively treated based on impermissible considerations, with the intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. Bower Associates v. Town of Pleasant Valley, supra at 631. The impermissible motive claim fails when the governmental objective is legitimate. Sonne v. Board of Trustees of Village of Suffern, 67 AD3d 192 [2d Dept 2009].
The court has ruled, supra, that Pine Street is a public street; that the License Agreement herein is enforceable; that there is insufficient evidence to prove that the BOT acted with animus in the commencement of this litigation; and that this action was not an actionable violation of the Open Meetings Law. Upon a careful review of the submissions, the court finds there has been no showing that the Village's conduct was so arbitrary as to constitute an abuse of authority, or to have risen to the level of a constitutional violation. The appearing defendants have failed to demonstrate they have a viable claim, in the face of the lawful conduct of the Village in taking the appropriate legal step required to quiet title to Pine Street. Consistent with the previous rulings, supra, the court finds that the Village acted with legal justification. Natale v. Town of Ridgefield, 170 F3d 258, 263 [2d Cir1999] ; Bower Associates v. Town of Pleasant Valley, supra at 629; Sonne v. Board of Trustees of Village of Suffern, supra; Bower v. Nassau County, 135 AD3d 800 [2d Dept 2016]. Hence, the appearing defendant's equal protection claim cannot stand due to their failure to demonstrate facts sufficient to warrant a finding of “intent to inhibit or punish” or “injure.” Bower Associates v. Town of Pleasant Valley, supra. In the absence of that showing, the appearing defendant's motion for summary judgment as to the third counterclaim is denied, and the Village's motion for summary judgment to dismiss the third counterclaim is granted. Alvarez v. Prospect Hosp., supra.
Accordingly, it is hereby
ORDERED that the motion for a declaratory judgment by plaintiff, the Village of Mamaroneck, made pursuant to CPLR 3212, is granted; and it is further
ORDERED, ADJUDGED AND DECLARED that Pine Street, located in the Village of Mamaroneck, New York, is a public street; and it is further
ORDERED that the motion of the appearing defendants, namely Stuart Tiekert, Charles Morelli, Ann Morelli, Rana Altinbas and 130 Beach Condominium Association, for summary judgment, made pursuant to CPLR 3212, as to their first, second and third counterclaims, as against plaintiff, the Village of Mamaroneck, is denied; and it is further
ORDERED that the motion of plaintiff, the Village of Mamaroneck, for dismissal of the first, second and third counterclaims, made pursuant to CPLR 3212,, as asserted by the defendants who appeared in this action, namely Stuart Tiekert, Charles Morelli, Ann Morelli, Rana Altinbas and 130 Beach Condominium Association, is granted, and the first, second and third counterclaims are dismissed.
The foregoing constitutes the Decision, Order and Judgment of the court