THE TOWN DID NOT OFFER PROOF THE ROAD LEADING TO PLAINTIFF’S HOME, WHICH WAS WIDENED BY THE TOWN, HAD BEEN USED BY THE PUBLIC AND MAINTAINED BY THE TOWN FOR 10 YEARS; THERFORE THE TOWN DID NOT PROVE THE ROAD WAS A PUBLIC HIGHWAY; THEREFORE PLAINTIFF’S EMINENT DOMAIN UNLAWFUL TAKING ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant municipality’s motion for summary judgment in this eminent domain “unlawful taking” action should not have been granted. Apparently the municipality did some work which widened the road leading to plaintiff’s home. Whether the work constituted an “unlawful taking” of plaintiff’s property turned on whether the road could be classified as a public highway. In order to demonstrate the road was a public highway the municipality had to prove the road was used by the public for at least 10 years. But the proof offered by the municipality only went back two years:

As the parties seeking summary judgment dismissing the eminent domain cause of action, defendants were required to establish, under these circumstances, that no unlawful taking occurred because Miller Road was a public highway by use pursuant to Highway Law § 189 and that all work that they performed was maintenance that did not have the effect of improperly widening the road. We agree with plaintiff that defendants failed to submit evidence establishing that Miller Road is a public highway within the meaning of section 189. “In order for a private road to be deemed a public highway by use, it must be show[n] that, for a period of at least 10 years, the road at issue was used by the public and the municipality exercised dominion and control over the road . . . Such a showing . . . requires more than intermittent use by the public and more than occasional road work by the municipality” … .

Here, in support of their motion, defendants submitted plaintiff’s testimony at a General Municipal Law § 50-h hearing, at which plaintiff repeatedly testified that the Town had, until shortly before the commencement of this action, refused to maintain the part of the road at issue, and the affidavit of defendant Highway Superintendent Joseph Wasilewski, who had personal knowledge of the facts concerning only the two years that preceded the filing of the motion. Consequently, we conclude that defendants failed to “make a prima facie showing of entitlement to judgment as a matter of law [by] tendering sufficient evidence to eliminate any material issues of fact from the case” … . Federman v Town of Lorraine, 2023 NY Slip Op 00553. Fourth Dept 2-3-23

Practice Point: Here the town widened the road leading to plaintiff’s house. Plaintiff brought an eminent domain unlawful taking action. In order to dismiss the complaint the town was required to prove the road was a public highway in that it was used by the public and maintained by the town for 10 years. The town’s proof fell short of that and plaintiff’s action should not have been dismissed.