ZAHURAK v. THE STATE OF NEW YORK , #2004-030-509, Claim No. 105941, Motion Nos.
ROBERT F. ZAHURAK, LISA L. ZAHURAK and ROB'S PRESTIGE AUTO BODY, INC.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
VERGILIS, STENGER, ROBERTS, PERGAMENT & VIGLOTTIBY: KENNETH M. STENGER, ESQ.
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
February 2, 2004
See also (multicaptioned
The following papers numbered 1 to 10 were read and considered on Defendant's
motion to dismiss, and Claimants' Cross-Motion for summary judgment and to amend
1,2, 3 Notice of Motion; Affirmation of J. Gardner Ryan, Assistant Attorney
General dated September 30, 2003; Affidavit of William D. Fitzpatrick sworn to
September 30, 2003 and accompanying exhibits
4-7 Notice of Cross-Motion; Affirmation of Kenneth M. Stenger, Counsel for
Claimants dated December 3, 2003; Affidavit of Robert F. Zahurak, Claimant,
sworn to December 1, 2003; Affidavit of R. Peters Hubbell, Jr., sworn to
December 3, 2003, and accompanying exhibits
Reply Affirmation of J. Gardner Ryan, Assistant Attorney General dated December
Affirmation of Kenneth M. Stenger, Counsel for Claimants dated December 10,
Filed Papers: Verified Claim
After carefully considering the papers submitted and the applicable law the
motions are disposed of as follows:
In a motion to dismiss a claim for failure to state a cause of action the
movant is held to have conceded the truth of every fact alleged by the Claimant
for purposes of the motion. Civil Practice Law and Rules §3211(a)(7).
Determination of the motion, generally, does not rest upon resolution of the
ultimate facts, but rather on whether those facts asserted make out a claim.
See Stukuls v State of New York, 42 NY2d 272, 275 (1977); c.f.
Rovello v Orofino Realty Co., Inc., 40 NY2d 633 (1976). However, " .
. . bare legal conclusions as well as factual claims flatly contradicted by the
record are not entitled to any such consideration . . . (citations
omitted). ‘When evidentiary material is considered, the criterion is
whether the proponent of the pleading has a cause of action, not whether he has
stated one' (Guggenheimer v Ginsburg, [43 NY2d 268 at 275]. This entails
an inquiry into whether or not a material fact claimed by the pleader is a fact
at all and whether a significant dispute exists regarding it . . . (citations
omitted)." Doria v Masucci, 230 AD2d 764, 765 (2d Dept 1996), lv
denied, 89 NY2d 811 (1997).
Defendant also moves to dismiss the Claim alleging this Court's lack of subject
matter jurisdiction, and Claimants' additional inability to maintain a cause of
action based upon expiration of the applicable statute of limitations at the
time of its commencement. See Civil Practice Law and Rules
§§3211(a)(2) and (5); Court of Claims Act §§9 and 10.
The use of the Assistant Attorney General's affirmation and the affidavit of
William D. Fitzpatrick, Regional Director of Traffic Engineering and Safety for
the New York State Department of Transportation (hereafter DOT) in Region 8,
appending evidentiary material for the Court's consideration satisfies the Court
that Defendant's motion is adequately supported as an initial matter.
Cross-Motion for Summary Judgment
Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . A motion for summary judgment shall be supported by affidavit, by a copy
of the pleadings and by other available proof, such as depositions and written
admissions. The affidavit shall be by a person having knowledge of the facts;
it shall recite all the material facts; and it shall show that there is no
defense to the cause of action or that the cause of action or defense has no
merit. The motion shall be granted if, upon all the papers and proof submitted,
the cause of action or defense shall be established sufficiently to warrant the
court as a matter of law in directing judgment in favor of any party . . . the
motion shall be denied if any party shall show facts sufficient to require a
trial of any issue of fact. If it shall appear that any party other than the
moving party is entitled to a summary judgment, the court may grant such
judgment without the necessity of a cross-motion.
Assuming a movant has made a prima facie
showing of entitlement to
judgment as a matter of law by proffering sufficient evidence to eliminate any
genuine, material, issues of fact, the party in opposition to the motion for
summary judgment must tender evidentiary proof in admissible form to establish
the existence of material issues which require a trial. Winegrad v New York
University Medical Center
, 64 NY2d 851 (1985); Zuckerman v City of New
, 49 NY2d 557 (1980). While it is not the best practice, the use of an
attorney's affirmation appending pertinent deposition testimony, documentary
evidence, and a verified pleading reciting material facts, is not a fatal
procedural flaw in a presentation. Alvarez v Prospect Hospital
, 68 NY2d
320, 325 (1986).
Claimants have submitted their Counsel's affirmation, the affidavit of Robert
F. Zahurak, one of the Claimants, and the affidavit of R. Peters Hubbell, Jr.,
their real estate appraiser, with attached exhibits, in support of their
Cross-Motion for summary judgment. Claimants' verified claim is appended as
well. [Exhibit H, Affirmation of Kenneth M. Stenger, dated December 3, 2003].
The Court is satisfied that Claimants' Cross-Motion is adequately
The following facts do not appear to be in dispute. Robert F. Zahurak and Lisa
L. Zahurak are the owners of property located in the Town of Poughkeepsie at the
northwest quadrant of the intersection of State Highway Route 44 (hereafter
Route 44) and Cherry Hill Drive, a private road, purchased in 1991. The
Claimants' property consists of approximately 3.1 acres of land improved with a
residence, an automobile body repair shop occupied by Rob's Prestige Auto Body,
Inc., and standard improvements such as internal paving, parking and storage
areas. The property has ± 72 feet of frontage on Route 44 at Cherry Hill
Drive, and ±845 feet of frontage on Cherry Hill Drive. [See
Affirmation of J. Gardner Ryan, Exhibits 1 and 2].
Cherry Hill Drive services the Cherry Hill Apartment complex, as well as Adams
Fairacre Farms, Claimants' neighbor to the east.
Claimants' property has a right of way for purposes of ingress and egress over
Cherry Hill Drive, and was served by three curb cuts as shown on a May 26, 1996
site plan. [Ibid, Exhibit 2]. These included a 15 foot wide driveway
leading directly to Route 44 and two, 30 foot wide, bi-directional driveways on
Cherry Hill Drive. The southern-most Cherry Hill Drive driveway was
approximately 220 feet from the intersection. The northerly driveway was
approximately 280 feet from the intersection. The driveway leading from Route
44 was used as a means of ingress and egress to the residence. The driveways
from Cherry Hill Drive led to - and still lead to - Claimants' auto body
In and around 1998 and 1999 the property across Route 44 from Claimants'
property was in the process of being developed as a small shopping center.
Various entities, including the Town of Poughkeepsie Planning Board, the DOT,
and Kirchhoff Construction Management, Inc., (hereafter Kirchhoff) the agent for
the owners of the development, Ameribrit, LLC, (hereafter Ameribrit), apparently
became involved in the process, with the end result being that the driveway from
Claimants' property to Route 44 was closed off permanently.
First, however, as part of its Town of Poughkeepsie Planning Board approval, it
was suggested that Kirchhoff be required to install a traffic signal to
regulate the traffic entering and exiting its commercial plaza. It applied for
and was granted a highway entrance permit by the DOT to be located on Route 44
opposite the mouth of the intersection between Cherry Hill Drive and Route 44.
Indeed, municipal approval of the project was conditioned upon obtaining such a
Affirmation of Kenneth M. Stenger, dated December 3, 2003,
Exhibit A]. The problematic part of the issuance of the permits to create an
entrance from the developer's property to Route 44, and to install a traffic
signal, is that arguably engineering standards required that if the traffic
signal were to be installed, no other entrances within 30 feet of the new
intersection would be allowed, including Claimants'
In correspondence between the DOT and the developer's engineers, from February,
1999 to December, 1999, the elimination of the Claimants' access to Route 44 is
mentioned as part of the plan for the development of the property owned by
Ameribrit and the reconfiguration of the proposed four-way intersection between
the already existing intersection of Cherry Hill Drive and Route 44, and the new
entrance from the owner's property onto Route 44. [See Ibid
Exhibits B, C and D]. The driveway from Claimants' property was apparently
temporarily closed on December 3, 1999 when the traffic signal was activated,
and Claimants removed the barrels that had been placed there. The DOT, however,
wrote to the developer's engineer reminding them that the continued operation of
the signal required satisfaction of the highway work permit, including permanent
closure or relocation of the Claimants' driveway. [Ibid Exhibit C].
In a December 8, 1999 letter to the DOT, Ameribrit refers to the December 3,
1999 letter from DOT to the engineer, saying that efforts to privately negotiate
the closure or relocation of the Claimants' driveway had failed. [Ibid
Exhibit D]. Ameribrit indicates that given the DOT's determination that the
intersection required a traffic signal - noting that closure of Claimants'
driveway access to Route 44 had been recommended some time ago, not just in
connection with the developer's plans - Ameribrit requests that the DOT amend
the highway work permit to exclude eliminating the driveway, and that the DOT
itself close the driveway. [Id]; [See also Affirmation of J. Gardner
Ryan, dated September 30, 2003, Exhibit 4 re: earlier recommendations to close
Then in a December 10, 1999 letter to Claimant Robert Zahurak, the DOT advised
that " . . . the signalization of Route 44 and Cherry Hill Drive was
activated last Friday on December 3rd . . . Although the Department had
approved the closing of the driveway under the terms of the Highway Work Permit
(HWP) issued to Ameribrit, the developer had agreed to construct a replacement
access either on Route 44 or Cherry Hill Drive, subject to your approval. To
this date you have rejected this solution. Based on highway safety concerns and
the responsibility of the Department to protect all users of our facilities,
this letter shall constitute notice that the driveway will be permanently closed
on or about December 15, 1999. Therefore, if the driveway relocation matter is
not resolved by that date, the current HWP will be amended to eliminate the
driveway's closure and that burden will be shifted to the Department.
Thereafter, any request for replacement access to Route 44 will require a new
Permit which would be issued to the respective property owner . . . "
[Affirmation of Kenneth M. Stenger, dated December 3, 2003, Exhibit E].
In their Claim, filed with the Clerk of the Court on April 22, 2002, Claimants
set forth five causes of action. The first is framed as a claim of de
appropriation, based on the installation of the traffic light, and the
related closure of Claimants' direct access to Route 44, allegedly rendering
their property unsuitable for its highest and best use. The second cause of
action alleges a violation of Vehicle and Traffic Law §1681(c) prohibiting
the expenditure of State funds to install traffic control devices to control
entrances to private property, resulting in an intrusion upon Claimants'
constitutional right to bargain freely with the private developer over the
valuable property right of access to Route 44. The third cause of action
alleges discriminatory practices in the administration of an otherwise
non-discriminatory law in violation of equal protection guarantees of the New
Constitutions. The fourth cause of
action alleges an unlawful exercise of police power, in using it for the
interest of a particular individual or entity as distinguished from acts done
for the public good as a whole. The fifth cause of action alleges a violation
of Claimants' right to due process pursuant to the Fourteenth Amendment to the
United States Constitution. The Claim was served on the Office of the Attorney
General on May 23, 2002. [Exhibit 5, Affirmation of J. Gardner Ryan dated
September 30, 2003]. Money damages in different amounts are demanded for each
cause of action. Injunctive relief is demanded with respect to the third,
fourth and fifth causes of action.
Discussion and Conclusion
In its supporting Affirmation, the Defendant reduces these causes of actions to
two factual assertions that Claimants allege entitle them to damages. Arguing
that neither factual predicate is sound, the Defendant states that Claimants'
alleged entitlement to damages are based upon the event of the closing of the
driveway; and the manner in which the Defendant managed the permit requiring
installation of the traffic signal. While this is a fair reduction of the
factual claims, the Court disagrees that such actions were necessarily without
To the extent that the third, fourth and fifth causes of action assert
violations of the federal constitution, they are dismissed, as claims for money
damages based upon the federal constitution are not legally cognizable in the
Court of Claims. The remedy for such claims would lie in a different venue in an
action based upon 42 USC §1983. Additionally, any claim for injunctive
relief is also dismissed. Because the Court of Claims is not a court of equity,
it is without jurisdiction to grant injunctive or other equitable relief except
as it may be incidental to the recovery of money damages. See generally,
Court of Claims Act §§8 and 9; Taylor v State of New York, 160
Misc 2d 120, 123 (Ct Cl 1994).
Although by statute the State is prohibited from expending public funds to
install traffic signals to regulate the flow of traffic at entrances to private
property - including private roads such as Cherry Hill Drive - after evaluating
public safety concerns, the State may nonetheless by permit allow private
parties to erect a traffic signal at an entrance to private property. See
Vehicle and Traffic Law §1681(c). Nonetheless, to the extent that any
causes of action assert deficiencies in the permitting process, the Claimants'
exclusive remedy based on such assertions would have been a special proceeding
brought in New York State Supreme Court pursuant to Article 78 of the Civil
Practice Law and Rules.
State Constitutional tort claims are also not made out here, given the
availability of alternate remedies through an Article 78 proceeding, [See
Martinez v City of Schenectady, 97 NY2d 78 (2001); Brown v State of
New York, 89 NY2d 172 (1996); Bullard v State of New York, 307 AD2d
676, 678-679 (3d Dept 2003)]; nor have they have been timely filed. Civil
Practice Law and Rules §3211(a)(5); Court of Claims Act §10
The best causes of action made out by what appear to be the uncontroverted
facts would be ones for trespass, continuing trespass or for de facto
Trespass is generally defined as the unlawful and intentional invasion of
another's property. See Black's Law Dictionary 1347 (5th ed. 1979). A
continuing trespass is one ". . . giving rise to successive causes of action,
barred only by the expiration of sufficient time to create an easement by
prescription . . . (citations omitted)." Vinciguerra v State of New
York, 262 AD2d 743, 745 (3d Dept 1999); See also Stewart v State
of New York, 248 AD2d 761 (3d 1998). What constitutes de facto
appropriation has been described in detail by the Court of Appeals. See
City of Buffalo v J.W. Clement Company, Inc., 28 NY2d 241 (1971). In a
case involving the City of Buffalo's announcement of an intent to condemn
properties and the alleged diminution in their value thereafter, the Court said
". . . the concept of de facto taking has traditionally been limited to
situations involving a direct invasion of the condemnee's property or a direct
legal restraint on its use . . . (citations omitted)." City of Buffalo
v J.W. Clement Company, Inc., supra, at 253. The elements of the
cause of action were stated therein, with the Court announcing ". . . a de
facto taking requires [either]  a physical entry by the condemnor,  a
physical ouster of the owner,  a legal interference with the physical use,
possession or enjoyment of the property or  a legal interference with the
owner's power of disposition of the property." City of Buffalo,
supra, at 255.
More recently, de facto
appropriation has been discussed in the context
of distinguishing such a cause of action from one for continuing trespass to
determine whether the plaintiff's claim was barred by res judicata
See e.g. O'Brien v City of Syracuse
, 54 NY2d 353 (1981) The Court
stated: "De facto
appropriation does not involve a proof of title in the
governmental defendant. Rather, de facto
appropriation, in the context
of physical invasion, is based on showing that the government has intruded onto
the citizen's property and interfered with the owner's property rights to such a
degree that the conduct amounts to a constitutional taking requiring the
government to purchase the property from the owner . . . " O'Brien v City of
, supra, at
Under both trespass or de facto
appropriation theories, however, the
intrusion must be unlawful and intentional. These elements cannot be subject
to resolution by summary adjudication, fact-driven as they are. Indeed, one
appellate division directed the trial Court to conduct a trial to determine
whether the governmental invasion was the lesser one of trespass, or the more
permanent de facto
condemnation. See Stewart v State of New
, supra, at 762-763. Similarly, whether the closing of the driveway was
so " . . . unreasonable and so onerous as to be
and the effect on the alleged
denial of suitable access to maintain the property's highest and best use are
fact-driven questions as well.
The claim herein was served upon the Office of the Attorney General on May 23,
2002 and filed with the Court of Claims on April 22, 2002. The applicable
statute of limitations is three (3) years with regard to a de facto
appropriation cause of action [See 81 and 3 of Florida v State of
New York, UID #2003-031-099, Claim No. 102175, Motion No. M-66375 (Minarik,
J., December 5, 2003); Court of Claims Act §10(1); Civil Practice Law and
Rules §214(4)]; and, therefore, the claim is timely. A trespass cause of
action, however, should have been commenced within ninety (90) days of its
accrual in December, 1999. Court of Claims Act §10 (3-b).
Accordingly, Defendant's motion to dismiss is granted in part and denied in
part, and Claimants' cross-motion for summary judgment is denied. Claimants'
second, third, fourth and fifth causes of action are dismissed.
Claimants also made application to amend the ad damnum clause on the
first cause of action from $60,000.00 to $84,000.00, based upon their
appraiser's valuation of the property, appended to the present cross-motion as
Exhibit G, and referenced in their appraiser's affidavit also presented on the
cross-motion. [See Affidavit of R. Peters Hubbell, Jr.]. Defendant has
not addressed this aspect of Claimants' Cross-Motion, nor does there appear to
be any prejudice to the State. Accordingly, Claimants' Motion to amend the
demand for money damages on the remaining cause of action is granted. Civil
Practice Law and Rules § 3025.
February 2, 2004
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
"A fair reading of the attorney's affirmation,
the hospital records and the defendant's deposition testimony compel the
conclusion that no material triable issues of fact exist as to the claims of
malpractice asserted against the defendant in the amended complaint as amplified
by the bill of particulars. The fact that defendant's supporting proof was
placed before the court by way of an attorney's affirmation annexing deposition
testimony and other proof, rather than affidavits of fact on personal knowledge,
is not fatal to the motion . . . (citations omitted
17 NYCRR §125.5(b); See generally
Vehicle and Traffic Law §1680; 17 NYCRR Chapter V, Uniform Traffic
Article I, New York State Constitution
Fourteenth Amendment, United States
"[It] may be characterized as an aggravated
form of trespass. The pertinent evidence in both actions is the same. The
basic distinction lies in the egregiousness of the trespass and whether it is of
such intensity as to amount to a taking." O"Brien v City of Syracuse
, at 357.
Affirmation of J. Gardner Ryan,
Assistant Attorney General, ¶¶ 38-40.