Opinion
# 2014-044-546 Claim No. 121063 Motion No. M-85028
09-15-2014
DAVID F. MAZZARESE v. THE STATE OF NEW YORK
HISCOCK & BARCLAY, LLP BY: Bryan J. Maggs, Esq. HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General
Synopsis
Defendant's motion for summary judgment granted on the issue of whether legal access to an appropriated property existed at the time of appropriation.
Case information
| UID: | 2014-044-546 |
| Claimant(s): | DAVID F. MAZZARESE |
| Claimant short name: | MAZZARESE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121063 |
| Motion number(s): | M-85028 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | HISCOCK & BARCLAY, LLP BY: Bryan J. Maggs, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 15, 2014 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed this claim to recover damages from the appropriation of certain real property located in the Town of Chemung, Chemung County. In accordance with the Uniform Rules for the Court of Claims (22 NYCRR) § 206.21 (a), the allegations of the claim are deemed denied without the necessity of an answer. Defendant now moves for summary judgment on the issue of whether legal access to NYS DPW SH 67-4 Acquisition Map No. 103, Parcel Nos. 141 and 142 (collectively Parcel 1) existed at the time of this appropriation. Defendant also seeks dismissal of that portion of the claim requesting compensation for NYS DPW SH 67-4 Acquisition Map No. 104, Parcel Nos. 143 and 159 (collectively Parcel 2). Claimant opposes the motion. Defendant replies.
Defendant's reply was received after the return date of June 25, 2014. However, defendant did not receive claimant's opposition until June 26, 2014. Given the lack of any objection by claimant, the Court will consider the reply letter.
Defendant contends that during an appropriation in 1962, the State acquired a former railroad bed (the Former Railroad Bed) immediately to the north of the Property and extinguished any easements claimant may have had to access Parcel 1 utilizing the Former Railroad Bed. Defendant asserts that the Court should find in this claim that Parcel 1 did not have any legal access prior to this appropriation and value it accordingly. Defendant also argues that claimant has no standing to seek damages for Parcel 2 as it was owned by Jamie Mazzarese on the date that the State took title.
Claimant contends that the relevant acquisition maps indicate that defendant is taking a portion of Parcel 1 in fee without access and the remaining portion with access, thus acknowledging that claimant had access to Parcel 1 from the Former Railroad Bed prior to this appropriation. Claimant further asserts that he has standing to seek damages for the appropriation of Parcel 2 because Jamie Mazzarese conveyed her interest in that parcel as part of their divorce.
The Court need not address claimant's argument that defendant effectively appropriated a fifth parcel owned by him and Jamie Mazzarese (also known by her maiden name Leonardi) by appropriating Parcels 1 and 2 and adjacent property belonging to Freeman Stephens and the Town of Horseheads, as this motion concerns only the limited issues of access to Parcel 1 and standing to assert a claim for Parcel 2.
Defendant, as the movant on this motion for summary judgment, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).
In order to obtain title to property taken by eminent domain, defendant is required to prepare an acquisition map "indicating and describing . . . the particular . . . interest or right, in the real property that is acquired including metes and bounds or section, block and lot numbers" (EDPL 402 [A] [1]). Title vests in the State when the acquisition map is filed in the office of the county clerk of the county in which the property is located (EDPL 402 [A] [3]). Further, when property is taken through eminent domain, it is taken in fee simple absolute and extinguishes all easements held by the former land owner (Thomas Gang, Inc. v State of New York, 19 AD3d 861 [3d Dept 2005]; Matter of Ossining Urban Renewal Agency v Lord, 39 NY2d 628 [1976]).
In support of this motion, defendant has submitted an affidavit of Christopher Kramer, Senior Land Surveyor for the Department of Transportation (DOT), Region 6. Kramer states that he has worked for DOT for 26 years, and has been a Professional Land Surveyor since 2000. Kramer indicates that he has reviewed NYS DPW SH 5048 Acquisition Map No. 76, Parcel No. 99 (Map No. 76), NYS DPW SH 5048 Acquisition Map No. 77, Parcel No. 100 (Map No. 77), NYS DOT SH 67-4 Acquisition Map No. 103 (Map No. 103), Parcel Nos. 141 and 142 (Parcel 1), and NYS DOT SH 67-4 Acquisition Map No. 104 (Map No. 104), Parcel Nos. 143 and 159 (Parcel 2) as well as the claim and claimant's deposition testimony. Kramer states that Map Nos. 76 and 77 show that defendant appropriated a railroad right-of-way and track map of the New York Lackawanna and Western Railway operated by the Delaware-Lackawana and Western Railroad Company (then Erie-Lackawanna Railroad Company) in November 1962. He notes that the Former Railroad Bed ran along the southerly boundary of State Highway (SH) 67-4 Lowman Waverly and along the northerly boundary of Parcel 1 and Parcel 2. He further states that the Former Railroad Bed was established as the highway boundary by Map No. 76, and was specifically appropriated by the State in fee without right of access to and from the abutting properties, in which Parcel 1 and Parcel 2 are included. Based upon this documentary evidence, Kramer opines that there has not been legal access to the parcels since the 1962 appropriation.
Kramer has provided this affidavit in support of both this motion and defendant's Motion No. M-85027 to dismiss Claim No. 121012 filed by the Town of Horseheads which owned property adjacent to the Property which has also been appropriated by defendant. The Court will refer to only the information in Kramer's affidavit which is relevant to Parcels 1 and 2.
In this case, defendant has submitted admissible evidence that it obtained title to the Former Railroad Bed pursuant to the filing of Map No. 76 and Map No. 77. Map No. 76 contains a metes and bounds description of the Former Railroad Bed, and specifically states that it is the "[d]escription and map of property which the superintendent of public works deems necessary to be acquired by appropriation in the name of the people of the [S]tate of New York in fee, - without right of access to and from abutting property -, for purposes connected with the highway system of the [S]tate of New York pursuant to [Highway Law § 30]." , Accordingly, defendant has met its burden of establishing that claimant did not have legal access to Parcel 1 and is entitled to judgment as a matter of law.
Affidavit of Christopher B. Kramer, sworn to Apr. 25, 2014 (Defendant's Motion for Summary Judgment, Exhibit B), Exhibit 7 at 5 (emphasis added).
The Court notes that in Map No. 77, defendant obtained title to a portion of the Roberts Hollow Creek bed. This appropriation was also made "without right of access to and from abutting property" (id., Exhibit 8 at 3).
The burden now shifts to claimant to set forth admissible evidence which would create questions of fact concerning his access to Parcel 1. Claimant testified at an examination before trial that he owned three parcels of property which contained gravel and topsoil pits and were located south of State Route 17. He stated that defendant appropriated two of the parcels (Parcel 1 and Parcel 2) as well as adjacent parcels to the east. Claimant explained that he would exit Route 17 at a crossover and travel onto the Former Railroad Bed. He would then travel west to reach Parcels 1 and 2. From the Former Railroad Bed, he could drive directly onto the parcels. Claimant stated that he removed and sold the topsoil, sandy loam, and gravel from the parcels and because the parcels were along the Chemung River, the topsoil, loam and gravel were constantly being replenished. Claimant noted that although he could access the parcels from the river for recreational purposes, he never removed any aggregate or soil by using the river for access. Claimant admitted that he had no written instruments which gave him permission to use the Former Railroad Bed to access his property.
Claimant noted that in 2005 or 2006, he attended a public meeting concerning the improvements necessary in order to upgrade Route 17 to Interstate Route 86. According to claimant, at that meeting, Peter White, the former Director of DOT's Region 6, indicated that the State was not going to reimburse claimant and the owners of the adjacent properties for the taking because none of the properties had access. Claimant apparently told White that he (claimant) did have access and that he went to his properties on a daily basis. Claimant said he would often encounter State employees working in that area and they would allow him to use the Former Railroad Bed to access his properties. He stated that no one ever told him that he was not allowed in that area or put up barricades to keep him out. He also indicated that the police were never sent to investigate the matter. Claimant stated that when defendant appropriated Parcel 1 and Parcel 2, he was paid $47,000 and allowed to remove some topsoil and gravel as well as his equipment from the property.
Claimant testified that he purchased Parcel 1 from the County of Chemung pursuant to a tax sale in 1984. He testified that he purchased Parcel 2 from Linda Finnerty approximately five years later and had her put the title in the name of Heather Mazzarese, his daughter. Claimant testified that even though Heather Mazzarese was the title owner of Parcel 2, it was really his property because he "bought it, owned it, [and] controlled it." In 2007, claimant had Heather Mazzarese convey Parcel 2 to Jamie Mazzarese. According to claimant, even though Jamie Mazzarese was on the title, claimant was the owner of Parcel 2. Claimant stated that as part of his divorce action, Jamie Mazzarese transferred title of both parcels to him. However, he was not positive that he recorded the deeds.
Affidavit of Bryan J. Maggs, Esq., sworn to June 24, 2014, in Opposition to Motion, Exhibit D at 56.
Claimant notes that the scope of the appropriation is defined by the acquisition map, and both the map and the related offer of settlement indicate that one portion of Parcel 1 (Map No. 103, Parcel 141) was a fee without access acquisition and the remaining portion of Parcel 1 (Map No. 103, Parcel 142) was a fee acquisition, indicating that defendant recognized that claimant had legal access to his property prior to this appropriation. Claimant further argues that the specific access point he used is delineated on Map 103 and as a result, his property should be valued as having access to the highway.
As set forth previously herein, defendant's appropriation of the Former Railroad Bed in 1962 extinguished legal access to the abutting properties which included Parcel 1 and Parcel 2. It is true that "an owner of property abutting a public highway has . . . a right to reasonable ingress and egress to and from the abutting land" (Penningroth v State of New York, 35 AD2d 1024, 1024 [3d Dept 1970], lv denied 28 NY2d 484 [1971]; cf. Van Valkenburgh v State of New York, 131 AD2d 903 [3d Dept 1987] [where the State, when appropriating the claimants' direct access to the highway, clearly provided them with a reasonable alternate access]). However, in this case, defendant plainly had appropriated the Former Railroad Bed "without access" to the remaining properties in order to create the highway boundary. While claimant correctly asserts that a property owner is entitled to damages for a loss of access (see generally Priestly v State of New York, 23 NY2d 152 [1968]), legal access to his property was extinguished in the 1962 appropriation and presumably the owner at that time was compensated (see Howell v Brozzetti, 246 AD2d 929 [3d Dept 1998]). Notwithstanding that claimant's property abutted the highway after the 1962 appropriation, claimant simply did not have legal access to the highway (see id. at 929-930; see also Reiss v State of New York, UID No. 2011-037-005 [Ct Cl, Moriarty III, J., Feb. 22, 2011]).
Moreover, claimant has acknowledged that there was no express grant from defendant creating a right of legal access in his favor after the 1962 appropriation. While the scope of the appropriation is defined by Map No. 103 as drawn and filed (EDPL 402 [A] [1]), the map clearly indicates that the State is appropriating all of claimant's land in fee simple absolute. Claimant has not set forth any support for his assertion that the designation of the taking in fee as opposed to fee without access somehow created legal access where none had existed since 1962.
To the extent that claimant may be asserting that his use of the Former Railroad Bed to access his property in the presence of defendant's employees and without any attempt to ever impede his access created an easement by prescription, the argument is without merit. It is well settled that a municipality, including the State, cannot lose title to property which it holds in its governmental capacity by adverse possession (Kings Park Yacht Club, Inc. v State of New York, 26 AD3d 357 [2d Dept 2006]; see also City of New York v Wilson & Co., 278 NY 86 [1938]; Monthie v Boyle Rd. Assoc., 281 AD2d 15 [2d Dept 2001]). Claimant has failed to meet his burden of creating any question of fact. Accordingly, the Court finds that claimant did not have access to Parcel 1 over the Former Railroad Bed at the time of the subject appropriation.
Defendant also seeks dismissal of the claim as it pertains to Parcel 2. Defendant has submitted the Report of Title concerning Parcel 2 as well as the abstract upon which it was based as prepared by the Department of Law, Real Property Bureau. The abstract of title indicates that on December 30, 1955, Harold Westbrook and Helen Westbrook conveyed real property which included Parcel 2 to Esther M. Archer. On June 27, 1984, Archer conveyed the real property including Parcel 2 to Pearl H. May who conveyed it to Linda M. Finnerty on December 16, 1987. Finnerty thereafter conveyed Parcel 2 to Heather Mazzarese on June 6, 1989. Heather Mazzarese then transferred Parcel 2 to Jamie Mazzarese on May 10, 2007. The report of Title indicates that Parcel 2 was owned by Jamie Mazzarese as of the date of vesting (March 19, 2009).
Defendant has also attached, as Exhibit E to its motion, a copy of an Agreement of Adjustment and Release of Owner executed by Jamie Mazzarese on November 15, 2011 (The Release). The Release provides that "[i]n consideration of the sum of . . . $5,200 . . . claimant hereby releases, exonerates and discharges The People of the State of New York from any and all claims and liability arising from and growing out of said appropriation . . . including any claim for the value of the property so appropriated."
Affirmation of Assistant Attorney General (AAG) Joseph F. Romani, dated Apr. 28, 2014, in Support of Motion, Exhibit E at 3. Within the Release, Jamie Mazzarese represented that she was the owner of the property at the time of the appropriation.
"It is well settled that the person or entity from whom title to the property is taken is entitled to the compensation to be awarded" (Central Dover Dev. Corp. v Town of Dover, 213 AD2d 367, 368 [2d Dept 1995]; Matter of Van Etten v City of New York, 226 NY 483, 489 [1919]). Moreover and as set forth previously herein, title vests at the time the acquisition map is filed in the County Clerk's Office (EDPL 402 [a] [3]).
Claimant has misconstrued Matter of City of Syracuse (224 NY 201, 209-210 [1918]) as holding that title does not pass until compensation is paid. The Court in Syracuse was distinguishing the case of Matter of Commissioners of Palisades Interstate Park (166 App Div 443 [2d Dept 1915], affd 216 NY 104 [1915]) which concerned a statute which expressly provided that title was not transferred until compensation was paid.
Defendant has submitted admissible evidence that Jamie Mazzarese was the record owner of Parcel 2 when it was appropriated on March 19, 2009, received compensation for its value and executed the Release, thereby discharging defendant from any claim arising from the appropriation. Accordingly, defendant has met its burden of establishing its entitlement to judgment dismissing any claim for damage pertaining to Parcel 2.
The burden now shifts to claimant to submit admissible evidence establishing the existence of material issues of fact requiring a trial of this matter. In opposition, claimant submits a copy of the transcript of an in-court stipulation of settlement entered into on October 16, 2009. In the stipulation, claimant and Jamie Mazzarese acknowledged that there were three parcels of real property on Route 17 that were the subjects of condemnation proceedings and that claimant would retain whatever rights may have remained in those properties. Claimant has also provided a certified copy of the judgment of divorce dated February 11, 2010 which specifically incorporated the stipulation of settlement.
The Court notes that although access to documents filed in connection with a matrimonial action is generally restricted to the parties and their attorneys (see Domestic Relations Law § 235 [1]), the parties are free to obtain and disclose copies of such documents as claimant has done in this case. However, upon review of the documents, the Court finds that certain information such as social security numbers should remain private and confidential, and has redacted them accordingly.
Claimant has also submitted a copy of a letter dated April 27, 2011 from DOT informing him that a second appraisal of Parcel 1 resulted in an increase of defendant's offer to $6,800. DOT further advised claimant that because the title for Parcel 2 was certified in Jamie Mazzarese's name, he could either provide a deed evincing title in his name and establish that it was recorded prior to the date of vesting, or provide an executed court document granting him Jamie Mazzarese's interest in the property.
The Court finds that claimant has not met his burden of creating a question of fact concerning his standing to pursue this claim for compensation for Parcel 2. Clearly, Jamie Mazzarese was record owner of Parcel 2 on the date title was taken and was entitled to receive compensation. Claimant has failed to provide any evidence that he submitted a copy of his judgment of divorce and the stipulation of settlement to DOT prior to Jamie Mazzarese's execution of the Release. This Court finds that defendant paid the person who had title at the time of vesting and obtained a properly executed release from any claims concerning Parcel 2. Accordingly, that portion of the claim seeking damages pertaining to Parcel 2 is dismissed.
The Court notes that claimant is not necessarily without a remedy as he may pursue a cause of action against Jamie Mazzarese for the alleged violation of the terms of their stipulation of settlement.
In conclusion, the Court finds that claimant did not have access to its property over the Former Railroad Bed at the time of the subject appropriation. Further, claimant does not have standing to assert a claim for damage with respect to Parcel 2 as Jamie Mazzarese, the record owner at the time of the appropriation, released defendant from any claims and liability associated with that parcel. Accordingly, defendant's motion for summary judgment is granted.
September 15, 2014
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on defendant's motion:
1) Notice of Motion filed on April 30, 2014; Affirmation of Joseph F. Romani, AAG, dated April 28, 2014, and attached exhibits; Memorandum of Law dated April 28, 2014.
2) Affidavit in Opposition of Bryan J. Maggs, Esq., sworn to on June 24, 2014, and attached exhibits; Memorandum of Law dated June 24, 2014.
3) Reply letter of Joseph F. Romani, AAG, dated July 9, 2014.
Filed papers: Claim filed on March 21, 2012.