| Matter of Village of Delhi v Town of Delhi |
| 2010 NY Slip Op 03526 [72 AD3d 1476] |
| April 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of Village of Delhi et al., Respondents, v Town ofDelhi et al., Appellants. |
—[*1] Law Firm of Frank Miller, East Syracuse (Frank W. Miller of counsel), forrespondents.
Cardona, P.J. Appeal from a judgment of the Supreme Court (Reynolds Fitzgerald, J.),entered July 10, 2009 in Delaware County, which granted petitioners' application, in a combinedproceeding pursuant to CPLR article 78 and an action for declaratory judgment, to, among otherthings, declare that respondent Town of Delhi is responsible for the repair and maintenance of abridge located within the Village of Delhi.
At issue in this combined CPLR article 78 proceeding and declaratory judgment action iswhich of two municipalities located in Delaware County is responsible for the maintenance andrepair of a concrete structure known as the Woolerton Street Bridge (hereinafter WSB). TheWSB spans 18 feet, 6 inches in length and provides passage to the public over Steele Brook. It isundisputed that petitioner Village of Delhi (hereinafter the Village) constructed the WSB in 1890and, after it washed away, reconstructed it in the 1930s. Thereafter, the Village performedcertain maintenance on the WSB, the amount of which is disputed. In 2007, the Villagerequested that respondent Town of Delhi (hereinafter the Town) maintain the WSB which was inneed of extensive repairs. According to the Village, since, among other things, it never formallyassumed the "control, care and maintenance" of the WSB as described in Village Law §6-606, its upkeep is the Town's obligation. The Town denied responsibility for maintaining theWSB on [*2]the basis that, first, the structure was not a bridgebut, instead, a culvert,[FN*]and, second, the WSB had been under the Village's "control and supervision" for the past 60 to100 years.
In 2008, petitioners—the Village and its Mayor—commenced this hybridproceeding against respondents—the Town and its Supervisor—seeking, amongother things, a judgment compelling the Town to maintain and repair the WSB and a declarationof the rights and obligations of the parties. Thereafter, respondents moved, pursuant to CPLR3211, to dismiss the hybrid proceeding for failure to state a cause of action and on the basis ofdocumentary evidence. In the alternative, respondents requested leave to conduct pre-answerdiscovery. Supreme Court, among other things, implicitly denied the motion to dismiss bygranting the petition and declaring that the Town is responsible for the care and upkeep of theWSB. This appeal ensued.
Initially, we find no error in Supreme Court's implicit denial of respondents' preanswermotion to dismiss based upon failure to state a cause of action. Liberally construed, petitioners'request for, among other things, a declaration that the Town is responsible for the WSBestablishes a cognizable legal theory upon which relief could be granted (see CPLR3001, 3211 [a] [7]; 7803; Village Law § 6-604; EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005];Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Crepin v Fogarty, 59 AD3d 837, 838 [2009]). Contrary torespondents' argument, the record does not establish, as a matter of law, that petitioners could notprevail because the WSB is a culvert, rather than a bridge. The Court of Appeals has held thatthe classification of whether a structure is a bridge or a culvert should be determined accordingto the ordinary, plain and functional meanings of those words (see Matter of Village ofChestnut Ridge v Howard, 92 NY2d 718, 723 [1999]). Here, the WSB carries WoolertonStreet above Steel Brooke at a height of 12 feet and it appears from the photographs that itspurpose is to carry the road across the brook. Moreover, the photographs do not show a "pipe- orbox-like construction, or earth fill between the top of the structure and the road surface," whichis typical of a culvert (id. at 724). Therefore, given this proof, we find no reason toconclude that the motion to dismiss should have been granted on that basis.
Furthermore, we are unpersuaded that the documentary evidence provided in respondents'preanswer motion to dismiss was sufficient to conclusively determine, as a matter of law, that thedismissal motion should have been summarily granted (see Mendelovitz v Cohen, 37 AD3d 670, 670-671 [2007]; see also Williams v Williams, 36AD3d 693, 695 [2007]; Martin vNew York Hosp. Med. Ctr. of Queens, 34 AD3d 650, 650 [2006]). Specifically, while itis clear that respondents produced evidence supporting their claim that the Village should beheld responsible for the WSB, petitioners, in turn, proffered a colorable claim for relief.Accordingly, we find no basis to conclude that Supreme Court erred in failing to grantrespondents' requested relief pursuant to CPLR 3211 (a) (1).
Nevertheless, we are persuaded by respondents' contention that Supreme Court, in grantingthe petition/complaint, sua sponte, incorrectly denied them their right to answer the amendedpetition and complaint and assert affirmative defenses (see e.g. Matter of Karedes vColella, 306 [*3]AD2d 769, 770 [2003]). While thatprocedure may be unnecessary in the rare case when the motion papers fully set forth all legaland factual issues and no prejudice will result from the failure to require an answer (seegenerally Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. ofNassau County, 63 NY2d 100, 102 [1984]), here, respondents have raised factual and legalissues which they should be able to assert in an answer, including necessary parties and statute oflimitations issues, and additional instances of supervision and control by the Village.Accordingly, the matter should not have been decided without allowing respondents theopportunity to submit an answer and complete any relevant discovery (see Matter ofMarinaccio v Boardman, 303 AD2d 896, 897 [2003]).
In light of the above conclusion, it is unnecessary to address the remaining issues raised bythe parties.
Mercure, Spain, Kavanagh and Garry, JJ., concur. Ordered that the judgment is reversed, onthe law, without costs, and matter remitted to the Supreme Court for further proceedingsconsistent with this Court's decision.
Footnote *: Whether the Town has a duty tomaintain a structure within its borders depends on whether that structure is defined as a bridge ora culvert (see Matter of Village of Chestnut Ridge v Howard, 92 NY2d 718, 724 [1999];see also Highway Law § 234; Village Law §§ 6-600, 6-602, 6-604).