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 and Cherry Hill
Drive, a private road, purchased in 1991. [See Affirmation of Kenneth M.
Stenger, Exhibit I, Deposition of Robert F. Zahurak]. 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.
It is a corner parcel, with ± 72 feet of frontage on Route 44 at Cherry
Hill Drive, and ±845 feet of frontage on Cherry Hill Drive.
Cherry Hill Drive is a 60 foot wide, two lane paved roadway, and services the
500 unit Cherry Hill Apartment Complex - indeed the entrance to the complex is
where the roadway ends - Adams Fairacre Farms, a store complex that runs along
the entire length of Cherry Hill Drive, and the Claimants.
Claimants’ property has two right-of-ways for purposes of ingress and
egress over Cherry Hill Drive, and prior to the acts alleged here was served by
three curb cuts generally, including a 15 to 17 foot wide driveway leading
directly to State 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 of Route 44 and Cherry Hill Drive.
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. Additionally, during his deposition, Mr.
Zahurak indicated that his tow trucks would use the access to Route 44 when a
truck needed to get to a location “sooner than later.” [Affirmation
by Kenneth M. Stenger, Exhibit I, p 14].
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),were
involved in the process, with one result being that the driveway from
Claimants’ property to Route 44 was closed off permanently on December 15,
1999, to enable the traffic signal installation required of the developer at the
intersection of Cherry Hill Drive and Route 44 to be activated.
In earlier phases of planning, as part of obtaining 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. Kirchhoff 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. 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
Thus, the Claimants
aver, the DOT conditioned issuance of its permit upon the developer’s
negotiating closure of Claimants’ driveway, as well as two other driveways
owned by others.
Mr. Kirchhoff testified at his deposition that the development project
encompassed an area along State Route 44 across the highway from its
intersection with Janet Drive to the west, to Cherry Hill Drive at the
easternmost portion of the site. [See Affirmation of Kenneth M. Stenger,
Exhibit B]. He said that installation of a traffic signal was a requirement
mandated by the DOT. Prior to the issuance of a DOT permit in September 1999 to
allow access to the State highway, Mr. Kirchhoff recalled having conversations
with DOT employees relative to closure of the Claimants’ driveway,
although he could not say a specific date.
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 developer’s property onto Route 44.
Indeed, the driveway from Claimants’ property was apparently temporarily
closed by DOT employees with barrels at the end of the driveway on December 3,
1999, when the traffic signal was activated, and Claimants removed the barrels
that had been placed there. Verbally advising Mr. Zahurak that his driveway was
closed “as of now”, the DOT also 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. Mr. Zahurak testified during his
deposition that when he spoke with DOT employee Jeff Wickeri within minutes of
the barrels having been placed at the end of his driveway, he learned that a
letter had been sent “yesterday, and if . . . [he] checked his mailbox
towards the end of the afternoon maybe it would be there.” [Affirmation of
Kenneth M. Stenger, Exhibit I, p 23].
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 E]. 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 its 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 - apparently the
first time the State directly contacted Claimant - 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, Exhibit E].
Mr. Zahurak indicates that in June 1999 he was visited by Joe Kirchhoff, who
introduced himself, and indicated that he was planning on re-doing the
intersection of Cherry Hill Road and Route 44, and that the State wanted him to
close Mr. Zahurak’s driveway. [Affirmation by Kenneth M. Stenger, Exhibit
J]. At the time, Mr. Zahurak said he would like to avoid closing the
driveway. [Id.]. Two days later, Mr. Kirchhoff returned
saying that it had been worked out, and that the DOT would be satisfied if
Kirchhoff were to put a “no left turn” sign at the end of
Zahurak’s driveway. [Id.]. In October 1999, Mr.
Zahurak observed that a two foot wide trench had been dug in front of his
property including the driveway along Route 44. [Id.].
Workers hired by Kirchhoff told him that they were replacing the curbing,
but that a drop curb would be placed where Claimants’ driveway accessed
Route 44. [Id.]. In the interim, barrels had been placed in
front of the driveway because the trench was not traversable.
[Id.]. Thereafter, the drop curb as well as the other curbing
was put in, and the driveway remained accessible until mid-November, 1999, when
Mr. Zahurak received a telephone call from Mr. Kirchhoff. [Id.].
Mr. Kirchhoff told him that the State had changed its mind over the no left
turn sign, and that Mr. Kirchhoff would have to close Mr. Zahurak’s
driveway, saying he had the State’s authority to do so.
According to Mr. Zahurak, after suggesting the use of crumbling materials to
construct the curb so that a “driveway” would be created over the
curb thus constructed when one of the Claimants’ snowplows drove over it,
Mr. Kirchhoff then proposed two alternate places he would cut a curb for
Claimants. [Id.]. The first suggestion was another curb cut on
Cherry Hill Road that would be directly in front of a solid shale rock with a
steep incline, and would create traffic over the septic system. [Id.].
The second suggestion was to cut a curb further west on the front of the
property on Route 44. [Id.]. Mr. Zahurak noted that the property
sloped at a 45-degree angle at the point suggested, sidewalk and bushes leading
to the residence would have to be removed and, as with the first suggestion,
only the offer to cut a curb was made. [Id.]. Any expense
associated with regrading, or paving a driveway would be Mr. Zahurak’s.
[Id.]. Mr. Kirchhoff then offered to have his people do the work,
but Mr. Zahurak would pay for the labor and the fuel of the trucks used, and
would do any landscaping and walkway replacement. [Id.]. When Mr.
Kirchhoff offered to construct the driveway next, replacement of the grass and
landscaping would still be Mr. Zahurak’s responsibility. [Id.].
As Mr. Zahurak thought about it, he concluded that it was not worth it to
have the mess for a relocated driveway, and queried whether he should be
otherwise compensated for the relocation of the driveway from its original spot.
At that point, apparently, Mr. Kirchhoff said he would not pay Claimants, but
that the State could. [Id].
The next day, Mr. Kirchhoff came to the property and, without Claimants’
consent, painted white lines along the front yard to show where the driveway
would be relocated, and then agreed to plant grass. [Id.]. Mr.
Zahurak still was not sure that the change wouldn’t decrease the value of
his property, and suggested that additional compensation might still be
warranted. [Id.]. Mr. Kirchhoff also suggested leaving the driveway where
it was, and signalizing it. [Id.]. Mr. Zahurak expressed himself
amenable to that solution. [Id.]. Mr. Kirchhoff also “pushed”
Mr. Zahurak for a number as to what kind of compensation he was thinking of.
[Id.]. Mr. Zahurak “threw out” a figure of $25,000.00.
[Id.]. After the dollar figure was mentioned, Mr. Kirchhoff did not
comment. [Id.]. This was a “little bit before Thanksgiving
Mr. Zahurak did not hear anything else until December 3, 1999, when he saw the
DOT employees, and Mr. Kirchhoff, and learned that the DOT was closing his
driveway as aforesaid. [Id. ¶20].
Deposition testimony from Jeffrey Wickeri, the DOT employee in charge of
permits in the traffic engineering safety group who was one of the signatories
to the highway permit granted to the developer; and from William D. Fitzpatrick,
Director of Traffic and Engineering and Safety for Region 8 for the DOT, is
also attached to Claimants’ motion. [Affirmation by Kenneth M. Stenger,
Exhibits G and D respectively]. As early as June 24, 1996 it appears that the
DOT was suggesting closure of Claimants’ driveway access onto Route 44,
apparently in connection with a project proposed by Claimants themselves, in a
letter directed to the Town Planner. [See Affirmation by Kenneth M.
Stenger, Exhibit H]. During Mr. Zahurak’s deposition, he indicated that
his project was ultimately granted by the Town. When Mr. Fitzpatrick was asked
why the driveway was not closed in 1996 pursuant to the regulatory authority
possessed by the DOT, he responded that at the time there was no
“mechanism” by which the DOT would step in and close the driveway in
his opinion, since the intersection of Cherry Hill Drive and Route 44 was
serviced by a stop sign, and no studies or regulations mandated such closure.
[Affirmation by Kenneth M. Stenger, Exhibit D, pp 21-25]. Indeed, he opined
that without a trigger such as a permit application, he thought the DOT would
have no authority to close Mr. Zahurak’s driveway. [Id.].
More expansively, Mr. Fitzpatrick stated - albeit with the proviso that this
was his personal understanding - that “[t]he department in the way that it
operated and still does is to negotiate closings of driveways, relocations of
driveways when there’s an alternate access for that particular property.
If there is no alternate access then the department must gain access or give
access to that property from the state highway. It can limit turning movements,
but the property owner has the right to access. So it would be a determination
whether that was one site, the residents (sic) in the front and the
commercial establishment in the back and whether they had access between . . .
and if they didn’t have access between whether the access could be gained
. . . [T]herefore I don’t believe the department had the right or the
argument at that point in time to close that driveway without negotiations with
the property owner or with the town . . . Later when the signal was placed at
that location and other . . . improvements were made, then the department had
the legal right to close the driveway and a mandate to close it in order to make
the intersection work.” [Affirmation by Kenneth M. Stenger, Exhibit D, pp
Mr. Wickeri testified during his deposition
that during his involvement in some capacity in the permit process that
included, he estimated, “200 [permits] a year for 30 years”, he had
experienced situations where a permit was issued that was conditioned on closure
of a point of access to a State highway on property not owned by the applicant.
[Affirmation of Kenneth M. Stenger, Exhibit G, pp 7, 11]. With respect to
fulfilling such a condition, Mr. Wickeri said, when asked, that it would be the
responsibility of the permit applicant. [Ibid.
p 11]. Other than with
regard to the permit granted here, Mr. Wickeri could not recall, when further
queried, any instance where the DOT closed or forced the relocation of a point
of access to a State highway, in connection with a permit that was conditioned
upon closure or relocation of a non-permittee’s point of access to a State
highway, where the condition had not been fulfilled by the permittee.
pp 12-13]. He indicated that “[it] was not the normal
procedure” for the DOT to undertake closure or relocation, although he
first testified that he thought it “happened a couple of times.”
p 12]. By way of explanation, he indicated that he did not
“remember the specifics . . . [of other occasions] . . .”, but just
knew “. . . there were times where we had to amend the permit to reflect
Referring to a letter Mr. Wickeri wrote to the consulting engineers on the
project on February 19, 1999 [See Affirmation of Kenneth M. Stenger,
Exhibit E], Mr. Wickeri explained that it was a summary of a meeting involving
the project, and includes the notation that the access to Route 44 from Prestige
Motors should be eliminated, as well as the access from other sites of concern.
[Ibid. Exhibit G, pp 14-16]. His attention was drawn to a post script in
that letter directed to Wilson Shook, the Town Planner for the Town of
Poughkeepsie, saying “The Town’s help and support are needed to
insure Adams, Prestige Motors, Cherry Hill and Canterbury Gardens are partners
in this venture, as any one of them could possibly ‘block’ the plan
we’ve presented.” He testified that what he meant by
“block” was that it was possible that one of the “major
players”, such as “Adams and Cherry Hill” would halt things in
the absence of agreements, but in his view Prestige Motors was not a
“major player.” He said that his understanding was that if no
agreement was reached with Prestige, the DOT “had the right to close that
driveway and to direct the contractor to close that driveway if no agreement was
reached.” [Ibid. pp 15-18]. He thought that the DOT did not need
approval from Prestige to close the driveway, since there was alternate,
reasonable access via Cherry Hill Drive.
Subsequent correspondence he wrote to the consulting engineers on the project
dated June 15, 1999 was also shown to Mr. Wickeri. [Affirmation of Kenneth M.
Stenger, Exhibit E]. The letter reiterates the recommendation that the Prestige
driveway be closed, and indicates the writer’s understanding that the
negotiations over the driveway were ongoing. When asked what his thinking was at
the time, Mr. Wickeri indicated that he hoped that the developer would “ .
. . talk to Prestige Motors . . . because you couldn’t get a proper plan
with the driveway where it was.” [Affirmation of Kenneth M. Stenger,
Exhibit G, p 21]. Mr. Wickeri acknowledged that to his knowledge, the Claimants
were not included in this discussion vis-a-vis the DOT, but rather were involved
in discussions with the developer.
A letter dated November 9, 1999 written by Joseph Kirchhoff and directed to
Mr. Wickeri was shown to the witness. [Affirmation of Kenneth M. Stenger,
Exhibit E]. In the letter, Kirchhoff states: “The plans for the . . .
project show the driveway owned by Prestige Autobody, along Route 44, to be
closed. I spoke with the owner several times and he objects to this decision.
Please provide a clarification on this issue.” [Id.]. Mr. Wickeri
could not say what he did in response to the letter. [Affirmation of Kenneth M.
Stenger, Exhibit G, p 24]. He said that “at some point” he involved
himself in negotiations between the developer and Mr. Zahurak, but did not
recall it as related to that letter.
Mr. Wickeri confirmed that the decision of December 3, 1999 to turn on the
signal would not have been his to make. [Affirmation of Kenneth M. Stenger,
Exhibit G, p 25]. He viewed himself as the person who issues the permit, and
that others, such as a permit inspector, then determines whether there has been
compliance. In terms of the pecking order, he knew that at some points during
his job tenure inspectors would report to him, but he could not recall whether
an inspector would likely report to him at that time. Asked about the placement
of barrels at the end of Claimants’ driveway on December 3, 1999, he said
he could not recall any involvement in that process. [Ibid. p 26]. Mr.
Wickeri also explained that there would have been two permits at issue: one
involving the construction and another involving the signalization; and two
different inspectors to inspect the work. [Ibid. p 27]. Again, he could
not recall if such inspectors would have reported to him at that time.
[Id.]. Shown Ameribrit’s December 8, 1999 letter to Mr.
Fitzpatrick, indicating that they could not resolve matters with Mr. Zahurak,
and asking the DOT to eliminate the permit requirement of closing
Claimants’ driveway, Mr. Wickeri said that although he recalled seeing it,
he could not recall the DOT’s response to it. [Ibid. p 28].
Finally, in an appraisal report submitted with Claimants’ papers, R.
Peter Hubbell, Jr., Claimants’ expert appraiser, discusses the effect of
the “appropriation” of Claimants’ driveway access to State
Route 44 upon the value of Claimants’ property. [Affirmation by Kenneth M.
Stenger, Exhibit K]. He opines that as of the date of the “taking”,
noted as December 10, 1999, the value of the property before
“taking” - inclusive of the portion of the property devoted to the
single family residence, and to the light industrial building - was
$450,000.00. [Id.]. The market value he denotes in the
“after” scenario, and as a “mixed use” parcel, is
$366,000.00, resulting in damages attributable to the “loss of driveway
access” in the amount of $84,000.00. [Id.]. In the initial
summarizing part of the appraiser’s report, he indicates that the highest
and best use in the before situation is “A single family residence and
light industrial (auto body shop) situated on separate lots.” Mr Hubbell
then indicates that the highest and best use in the after situation is
“Light industrial (auto body shop) with accessory single family
In their Claim, filed with the Clerk of the Court on April 22, 2002, Claimants
set forth five causes of action.
cause of action is one for de facto
appropriation, based on the
activation of the traffic light, and the related intentional closure of
Claimants’ direct access to State Route 44, allegedly rendering their
property unsuitable for its highest and best use. 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].
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).
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
owner’s power of disposition of the property.” City of
Buffalo, supra at 255.
appropriation has also 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
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
Where, as here, there has
been no physical invasion, the question is the degree of interference with an
owner’s property rights and whether the consequences of that interference
establish a compensable de facto
taking, or the mere inconvenience of
regulation. See Penn Central Transp. Co. v City of New York
NY2d 324 (1977), affd
438 US 104, rehearing denied
, 439 US 883
(1978). Even so, compensation is available if the regulatory act goes
“too far”, and substantially destroys the conflicting property
interest of the abutting landowner.
Any property right Claimants have to access to the State highway, is always
circumscribed by the paramount State interest in maintaining safe roadways. The
right, in any event, is limited to reasonable access to the State highway, not
the right to a particular access point. Cities Service Oil Co.v City of New
York, 5 NY2d 110, rearg denied, 5 NY2d 1041, cert denied, 360
US 934 (1959). Thus, for example, when New York City placed a bus stop in front
of plaintiffs’ gasoline station it did not constitute an unreasonable
interference with plaintiffs’ right of ingress or egress. Cities
Service Oil Co. v City of New York, supra. Although the gas station
plaintiffs asserted that their “right” of ingress and egress was a
paramount property right, the Court of Appeals rejected that notion stating that
rather than the abutting landowner’s access being the superior property
right, it is the municipality for the benefit of the public at large that has
the paramount right to the use and control of the streets. Cities Service Oil
Co. v City of New York , supra. The Court said: “To promote and
facilitate travel on street and highway, a municipality may, therefore, in the
exercise of an unquestioned governmental function, regulate and control traffic
and public transportation. Unless arbitrary and capricious, such an act
‘will not be restrained nor will the courts assume the management and
control of [the] highways’. . . (citation omitted).”
Cities Service Oil Co. v City of New York, supra at 115.
Similarly, in Randall v State of New York, 75 AD2d 906 (3d Dept 1980), a
property owner who operated a truck and automobile sales business and also
maintained his residence on property adjacent to a State service road could not
recover damages when the DOT changed the designation of the service road to a
one-way street, since there had been no encroachment on his property, or
destruction of suitability of access. Despite the fact that those desiring
entry to his property would now have to travel a circuitous route, this was
viewed as an inconvenience that was not compensable. Randall v State of New
York, supra at 907.
Even in a case involving a direct appropriation of a small portion of
Claimants’ property, when the Claimants sought consequential damages for
the alleged inadequacy of access caused by the reconstruction of a State
highway, that portion of the award ascribable to the access issue was reduced by
the Appellate Division, whose determination was affirmed by the Court of
Appeals. Bopp v State of New York, 19 NY2d 368 (1967). Claimants in
Bopp v State of New York, supra operated a motel-lodge and
restaurant directly across a road leading off State Route 28 to the Belleayre
recreational area. In addition to appropriating a small portion Claimants’
property for the reconstruction, the State of New York closed off the area of
Route 28 directly adjacent to their lodge. This would have cut off the
Claimants’ access to the State Highway entirely, except that the State
also constructed an additional access road, connecting a portion of the old
Route 28 to the new Route 28 to the west of Claimants’ property.
Claimants’ property was no longer visible from the new Route 28, however,
and the “. . . access road required a sharp turn off the new Route 28.
The claimants’ property was some 700 to 800 feet from that turnoff.”
Bopp v State of New York, supra at 371. After these changes, the
Claimants could not profitably continue the operation of the motel-lodge and
restaurant, and the property’s use was changed to a summer residence,
except during the ski season when overflow clients from lodges nearby could
stay. Although the Court of Claims found that the highest and best use had been
reduced, the appellate courts disagreed. The Court of Appeals said: “. . .
damages resulting from circuity of access to the claimants’ property as
well as damages incurred because traffic no longer passes the claimants’
property are not compensable.” Bopp v State of New York,
supra at 371. The Court continued: