| Matter of Dashnaw v Town of Peru |
| 2013 NY Slip Op 07913 [111 AD3d 1222] |
| November 27, 2013 |
| Appellate Division, Third Department |
| In the Matter of Kevin Dashnaw et al., Appellants, v Townof Peru et al., Respondents. |
—[*1] O'Connell & Aronowitz, PC, Plattsburgh (Donald W. Biggs of counsel), forrespondents.
Stein, J. Appeal from a judgment of the Supreme Court (Muller, J.), entered June 11,2012 in Clinton County, which, among other things, in a combined proceeding pursuantto CPLR article 78 and action for declaratory judgment, granted respondents' motion todismiss the petition/complaint.
Petitioners own real property located in the Town of Peru, Clinton County, whichthey sought to subdivide and develop. The property is accessed by Fairway Drive, aroadway formerly known as Brand Hollow Road.[FN1]Petitioners applied for a certificate of occupancy and building permit and, in connectiontherewith, were informed, among other things, that respondent Town of Peru would denythe building permit due to "insufficient road frontage." As a result, petitionerscommenced this combined CPLR article 78 proceeding and action for declaratoryjudgment claiming, among other things, that the Town failed to maintain, repair andservice Fairway Drive (ninth cause of action) and seeking, as pertinent here, a declarationthat Fairway [*2]Drive is "an active and open town roadand public right of way, which has not been formally abandoned, discontinued or closedby any of the respondents[ ]."
Respondents filed a pre-answer motion to dismiss the petition/complaint alleging, aspertinent here, that petitioners failed to state a cause of action (see CPLR 3211[a] [7]) because Fairway Drive was never a town road and, even if it were, it had beenabandoned. Supreme Court dismissed all of the causes of action contained in the CPLRarticle 78 petition and directed the parties to submit additional briefs with respect to thedeclaratory judgment action. The court subsequently granted petitioners' motion forreargument to the extent that it vacated so much of its prior order that dismissed the ninthcause of action regarding Fairway Drive. Supreme Court thereafter found that FairwayDrive was a former town road that had been abandoned by the Town and dismissedpetitioners' action for a declaratory judgment, as well as the ninth cause of action tocompel the Town to maintain Fairway Drive. This appeal by petitioners ensued and, forthe reasons that follow, we modify.
Initially, we agree with petitioners' argument that Supreme Court erred in treatingrespondents' pre-answer motion to dismiss as one for summary judgment.[FN2]Generally, a summary judgment motion is premature prior to the service of an answer (see Yule v New York ChiropracticColl., 43 AD3d 540, 541 [2007]). However, a court may treat a pre-answermotion as one for summary judgment if it "give[s] prior notice to the parties or, throughtheir submissions, the parties themselves . . . demonstrate an intent to'deliberately chart[ ] a summary judgment course' " (Elhannon, LLC v Brenda J. DeLuca Trust, 108 AD3d 911,911-912 [2013], quoting Pilatich v Town of New Baltimore, 100 AD3d 1248, 1250[2012]; see Yule v New York Chiropractic Coll., 43 AD3d at 541-542). There isno indication in the record before us—nor do the parties assert—thatSupreme Court provided any notice of its intention to treat the motion as one forsummary judgment. Thus, the question before us distills to whether the parties charted asummary judgment course by laying bare their proof (see Elhannon, LLC v Brenda J.DeLuca Trust, 108 AD3d at 911-912; Pilatich v Town of New Baltimore,100 AD3d at 1250; Yule v New York Chiropractic Coll., 43 AD3d at 541-542).
Notably, none of the parties explicitly requested summary judgment relief. Althoughpetitioners' submissions—which consisted of an affirmation of petitioners' counseland an affidavit from each petitioner, with supporting documents—reflect someeffort to controvert the voluminous evidence presented in support of respondents'motion, most of those submissions addressed respondents' attempt to demonstrate thatFairway Drive had never been a town road. Little evidence was presented by petitionerswith regard to the issue of whether Fairway Drive had been abandoned. Thus, petitionersclearly did not lay bare all of their proof on that issue (see Stainless Broadcasting Co.v Clear Channel Broadcasting Licenses, L.P., 58 AD3d 1010, 1012 [2009]). In fact,the affirmation of petitioners' counsel suggests that the parties—or, at the very[*3]least, petitioners—intended to further litigatethe issue of abandonment.[FN3]Under these circumstances, Supreme Court erred in treating respondents' motion as onefor summary judgment.
In reviewing the merits of the motion to dismiss for failure to state a cause of action,we "must afford the pleadings a liberal construction, take the allegations of the complaintas true and provide [the] plaintiff the benefit of every possible inference" (EBC I, Inc. v Goldman, Sachs &Co., 5 NY3d 11, 19 [2005]; see Vectron Intl., Inc. v Corning Oak Holding, Inc., 106 AD3d1164, 1165 [2013]). Specifically, with regard to a pre-answer motion to dismiss adeclaratory judgment action, the only issue presented for consideration is "whether acause of action for declaratory relief is set forth, not . . . whether theplaintiff is entitled to a favorable declaration" (North Shore Towers Apts. Inc. v Three Towers Assoc., 104AD3d 825, 827 [2013] [internal quotation marks and citation omitted]; seeHallock v State of New York, 32 NY2d 599, 603 [1973]). However, "where thecourt, deeming the material allegations of the complaint to be true, is nonetheless able todetermine, as a matter of law, that the defendant is entitled to a declaration in his or herfavor, the court may enter a judgment making the appropriate declaration" (DiGiorgio v 1109-1113 ManhattanAve. Partners, LLC, 102 AD3d 725, 728 [2013]). On the other hand, "if thematerial allegations of the complaint, taken as true, implicate 'factual issues such that therights of the parties cannot be determined as a matter of law, a declaration upon a motionto dismiss is not permissible' " (id., quoting Matter of Tilcon N.Y., Inc. v Town of Poughkeepsie, 87 AD3d1148, 1151 [2011]).
Here, petitioners' cause of action for declaratory judgment was sufficient to invokeSupreme Court's jurisdiction to render a determination as to whether Fairway Drive wasa public road and, if so, whether it had been abandoned (see Highway Law§ 205 [1]). Since the issue of abandonment is a factual determination that cannotbe made as a matter of law (see Matter of Smigel v Town of Rensselaerville, 283AD2d 863 [2001]; Matter of Wills v Town of Orleans, 236 AD2d 889 [1997]),Supreme Court erred by finding that Fairway Drive is a private road and by dismissingpetitioners' claim for a declaratory judgment. Similarly, it was error to dismiss petitioners'ninth cause of action, which alleged that Fairway Drive was a town road and thatrespondents had not complied with their duty to maintain it. Inasmuch as the ninth causeof action sufficiently stated a cause of action to compel the Town to maintain FairwayDrive (see Matter of Aldous v Town of Lake Luzerne, 281 AD2d 807, 808[2001]; see generally Highway Law § 140) and dismissal of such cause ofaction was based on the premature conclusion that the road had been abandoned by theTown, it should be reinstated.
The parties' remaining claims have been reviewed and found to be either academic orwithout merit.[*4]
Rose, J.P., McCarthy and Garry, JJ., concur.Ordered that the judgment is modified, on the law, without costs, by reversing so muchthereof as granted respondents' motion to dismiss the ninth cause of action and the claimfor declaratory judgment; motion denied to that extent and matter remitted to theSupreme Court to permit respondents to serve an answer within 20 days of the date ofthis Court's decision; and, as so modified, affirmed.
Footnote 1: Brand Hollow Roadruns in an east/west direction and, in the 1960s, was dissected by the creation ofInterstate 87. Fairway Drive lies on that portion of Brand Hollow Road that was east ofInterstate 87.
Footnote 2: Supreme Court'sdecision clearly shows that it treated the motion as one for summary judgment anddismissed the petition/complaint on its merits, finding that respondents "readily met theirburden of demonstrating that the [eastern] portion of [the road]" had been abandoned.
Footnote 3: It is significant to notethat petitioners also attempted to submit two additional affidavits in response torespondents' motion papers—one from a former Highway Superintendent and onefrom a former Town Board Supervisor—which touched on the issue of the Town'salleged abandonment of the road. However, upon respondents' objection to theseaffidavits as untimely submitted, Supreme Court refused to consider them.