The Second Department determined plaintiff's action to have property used by plaintiff as a parking lot declared an abandoned highway was properly dismissed for failure to state a cause of action. The roadbed had been paved and used as a parking lot by plaintiff. Plaintiff alleged the roadway had not been used for at least 15 years. However, Highway Law 205(1), which allows a public easement to be declared abandoned, does not apply where the municipality owns a fee interest in the road, which was the case here:
In 1942, “all right, title and interest” in Bishop Road was dedicated to the Town “for highway purposes.” … The plaintiff alleged that when it acquired the property abutting Bishop Road in 1998, Bishop Road was “an unpaved dirt pathway” that led to “nowhere,” and that it paved the length of Bishop Road, painted stripes for parking stalls to provide spaces for its customers, and erected a six-foot fence, enclosing the full width of the roadbed. The plaintiff asserted that, with the exception of vehicles that cross over a small portion of Bishop Road to enter a separate lot, there had been no regular vehicular or pedestrian traffic along Bishop Road for at least 15 years. * * *
… Highway Law § 205(1) “sets forth a six-year limitation on the life of an unused public easement” … . It does not apply where a town has acquired a fee to the land in question … . Here, the plaintiff does not dispute that the Town owns a fee interest in Bishop Road. Accordingly, Bishop Road cannot be deemed abandoned under Highway Law § 205, even if it has not “been traveled or used as a highway for six years” (Highway Law § 205[1]…). No-Dent Props., Inc. v Commissioner of Town of Hempstead Dept. of Hwys., 2016 NY Slip Op 02625, 2nd Dept 4-6-16