| Underhill Ave. Corp. v Village of Croton-on-Hudson |
| 2011 NY Slip Op 01998 [82 AD3d 963] |
| March 15, 2011 |
| Appellate Division, Second Department |
| Underhill Avenue Corp., Appellant, v Village ofCroton-on-Hudson et al., Respondents. |
—[*1] McCullough, Goldberger & Staudt, LLP, White Plains, N.Y. (Evan M. Eisland of counsel),for respondent Village of Croton-on Hudson. Grant & Lyons LLP, Rhinebeck, N.Y. (Drayton Grant of counsel), for respondents BarbaraBootz, Joseph O'Hagan, Frank Billack, and Jane DelBianco.
In an action for a judgment declaring that lot 14 on filed map No. 9388, dated May 29, 1954,of the Riverbank Homes subdivision in the Village of Croton-on-Hudson is not subject to anopen offer of dedication as a playground area, the plaintiff appeals from an order of the SupremeCourt, Westchester County (DiBella, J.), entered January 15, 2010, which denied its motion forsummary judgment and, upon searching the record, awarded summary judgment to thedefendants.
Ordered that the order is affirmed, with one bill of costs payable to the respondents appearingseparately and filing separate briefs, and the matter is remitted to the Supreme Court,Westchester County, for the entry of a judgment declaring that lot 14 of the Riverbank Homessubdivision in the Village of Croton-on-Hudson is subject to an open offer of dedication as aplayground area, as noted on filed map No. 9388, dated May 29, 1954.
In 1954, the Planning Board of the Village of Croton-on-Hudson (hereinafter the Village)approved development of the Riverbank Homes subdivision subject to certain conditions,including an offer of dedication of lot 14 as a playground area. The final plat for the subdivision,filed in the Westchester County Clerk's office on October 5, 1954, noted the offer to dedicate lot14 with the words "playground area" on lot 14. It is undisputed that the Village never acceptedthe offer of dedication.
In August 2007, the plaintiff contracted to purchase lot 14. The sale was contingent upon theplaintiff obtaining a building permit for the construction of a single-family home on lot 14, andwas subject to covenants, conditions, easements, and restrictions of record. The plaintiffsubmitted a building permit application to the Village Building Department with a request that itremove the designation of the lot as a playground area. The request was denied. The plaintiff thencommenced this action against the Village, seeking a declaration that lot 14 is not subject to any[*2]condition that the lot remain a "playground area" nor to anyright of the Village to claim any interest or entitlement to lot 14 as a "playground area."
The plaintiff then moved for summary judgment. The Supreme Court denied the plaintiff'smotion without prejudice, directing the plaintiff to serve the homeowners of the subdivision withthe pleadings and motion papers. Four homeowners intervened as defendants and opposed themotion. The Supreme Court ultimately denied the plaintiff's motion, searched the record andawarded summary judgment to the defendants, holding that the plaintiff is not entitled to removalof lot 14's designation as a playground area unless all interested parties agreed to revoke thededication. The plaintiff appeals, and we affirm.
A municipality may accept an offer of dedication at any time prior to a valid revocation by allparties who have a legal interest in the land subject to such offer, including subdivisionhomeowners who purchase their lots with reference to a subdivision map noting the offer ofdedication (see Foreal Homes v Incorporated Vil. of Muttontown, 128 AD2d 585 [1987],affd for reasons stated 71 NY2d 821 [1988]; West Ctr. Cong. Church vEfstathiou, 215 AD2d 753 [1995]; Landon v City of Binghamton, 79 AD2d 810[1980]; Hubbard v City of White Plains, 18 AD2d 674 [1962]; Sauchelli v Town ofHempstead, 1 AD2d 689 [1955]). The plaintiff concedes that the offer of dedication wasnever revoked by all interested parties. Instead, the plaintiff contends that the Village implicitlyrejected the offer, rendering the plat notation without effect. Contrary to the homeowners'contention, this challenge is not time-barred pursuant to Village Law § 7-740, since theplaintiff is not challenging the original imposition of the condition that the developer offer todedicate lot 14 (cf. Foreal Homes v Incorporated Vil. of Muttontown, 128 AD2d 585[1987]). However, it is without merit.
A municipality may reject an offer of dedication (see Lexjac, LLC v Beckerman, 72 AD3d 748 [2010]; Matter ofMontipark Realty Corp. v Village of Monticello, 174 AD2d 876 [1991]). Here, however, theVillage did not do so. A lapse of time does not extinguish an offer of dedication, which may beaccepted at any time prior to a valid revocation by all interested parties (see West Ctr. Cong.Church v Efstathiou, 215 AD2d 753 [1995]; Hastings Petroleum Corp. v IncorporatedVil. of Hastings-on-Hudson, 13 AD2d 963 [1961], affd 11 NY2d 850 [1962]).Further, a failure to accept an offer of dedication is not a rejection of that offer (see ForealHomes v Incorporated Vil. of Muttontown, 128 AD2d 585 [1987]; West Ctr. Cong.Church v Efstathiou, 215 AD2d 753 [1995]). None of the Village's actions cited by theplaintiff were entirely inconsistent with a later acceptance by the Village of the offer ofdedication (cf. Matter of Fox St., 54 App Div 479 [1900]). Finally, the open offer ofdedication noted on the subdivision plat remains enforceable against subsequent purchasers,regardless of the fact that the Village previously purported to convey lot 14 without noting theopen offer of dedication on the deed (seeO'Mara v Town of Wappinger, 9 NY3d 303 [2007]). Accordingly, the offer ofdedication remains open and the Supreme Court properly awarded summary judgment to thedefendants.
Since this is a declaratory judgment action, the matter must be remitted to the SupremeCourt, Westchester County, for the entry of a judgment declaring that lot 14 of the RiverbankHomes subdivision in the Village of Croton-on-Hudson is subject to an open offer of dedicationas a playground area, as noted on filed map No. 9388, dated May 29, 1954 (see Lanza vWagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], certdenied 371 US 901 [1962]). Dillon, J.P., Florio, Dickerson and Cohen, JJ., concur.