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THERE ARE QUESTIONS OF FACT ABOUT WHETHER THE ROAD LEADING TO PETITIONER’S PROPERTY WAS PROPERLY CERTIFIED “ABANDONED” SUCH THAT THE MUNICIPALITY IS NOT RESPONSIBLE FOR ITS MAINTENANCE; AND PETITIONER STATED AN EQUAL-PROTECTION CLAIM UNDER 42 USC 1983 (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined there were questions of fact whether the road (Van Slyke Road) leading to petitioner’s property should have been certified “abandoned” such that the town did not have to maintain it. The two dissenters argued petitioner did not state an equal-protection claim alleging selective enforcement under 42 USC 1983:

Petitioners assert that there are many other roads in the Town that have no outlet — with no or few residences situated on them — that are maintained by the Town. Specifically, petitioners point to Snell Road and Hunt Road as being roughly equivalent to Van Slyke Road. Like Van Slyke Road, these roads are dead ends, are comprised of compressed dirt and gravel, and have only one residence. Unlike Van Slyke Road, the Town maintains these roads. … [V]iewing these allegations liberally, petitioners have stated an equal protection claim under 42 USC § 1983,  * * *

… [W]e find that triable issues of fact exist as to the use and condition of Van Slyke Road such that neither party is entitled to summary judgment on the abandonment claim … . Matter of Fernandez v Town of Benson, 2021 NY Slip Op 04584, Third Dept 7-29-21

 

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