New York State Court of Claims

New York State Court of Claims

ZAHURAK v. THE STATE OF NEW YORK , #2004-030-509, Claim No. 105941, Motion Nos. M-67486, CM-67736


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
February 2, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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 the Claim:
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

  1. Reply Affirmation of J. Gardner Ryan, Assistant Attorney General dated December 8, 2003
  1. Affirmation of Kenneth M. Stenger, Counsel for Claimants dated December 10, 2003
  1. Filed Papers: Verified Claim
After carefully considering the papers submitted and the applicable law the motions are disposed of as follows:
Motion to Dismiss
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 York, 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).[1]

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 supported.
Factual Background
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 business.

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 permit. [See 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' driveway.[2]

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 driveway].

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].
The Verified Claim
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 facto 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 York State[3] and United States'[4] 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 legal consequence.

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 (3-b).

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 appropriation.

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] [1] a physical entry by the condemnor, [2] a physical ouster of the owner, [3] a legal interference with the physical use, possession or enjoyment of the property or [4] 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 Syracuse, supra, at 357.[5]

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 York, supra, at 762-763. Similarly, whether the closing of the driveway was so " . . . unreasonable and so onerous as to be confiscatory,"[6] 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
White Plains, New York

Judge of the Court of Claims

[1]"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)."
[2] 17 NYCRR §125.5(b); See generally Vehicle and Traffic Law §1680; 17 NYCRR Chapter V, Uniform Traffic Control Devices.
[3] Article I, New York State Constitution §11.
[4] Fourteenth Amendment, United States Constitution.
[5]"[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, supra, at 357.
[6] See Affirmation of J. Gardner Ryan, Assistant Attorney General, ¶¶ 38-40.