The following papers were read on this motion: Motion Sequence 001 Notice of Motion, Affirmation and Exhibits 1 Plaintiff’s Memorandum of Law 2 Motion Sequence 002 Notice of Cross-Motion, Affirmation and Exhibits 1 Defendant’s Memorandum of Law 2 Reply Affirmation in Support and Exhibits 3 Plaintiff’s Memorandum of Law in Support and Opposition to Cross Motion 4 DECISION AND ORDER PRELIMINARY STATEMENT In Motion Sequence 001, Plaintiff, Inwood Land Holdings, Inc., brings this application for an order pursuant to CPLR §3212(a) and §3211(b) granting Plaintiff summary judgment declaring that Plaintiff possesses the absolute right to ingress and egress to and from its property over certain property owned by Defendant located in Inwood, New York, and dismissing Defendant’s affirmative defenses, and together with such other and further relief as the Court deems just, proper and equitable. In Motion Sequence 002, Defendant, The State of New York, brings this application for an order granting summary judgment in the defendant State of New York’s favor pursuant to CPLR §3212, and together with such other and further relief as may seem just and proper to the Court. Opposition and reply have been submitted. DISCUSSION This action on behalf of the owner of 10.4 of 11.3 acres of land, formerly owned by Nassau County for a sewage treatment plant. Plaintiff acquired the land by deed dated December 15, 2009 (Exh. “F”), with .9 acres retained by the County for a sewer pump station. The litigation arises from the actions of the New York State Department of Transportation (“NYSDOT”) having taken land in the immediate vicinity of plaintiff’s property connection with the development of the Nassau County Expressway. Plaintiff’s parcel abuts the westerly boundary of Parcel 734, as depicted in Exh. “D”. Parcel 723 appears on Exh. “C”. They constituted a Right of Way between Bay Boulevard and he County’s land, so as to provide access to and from Bay Boulevard to the sewage treatment plant. NYSDOT acquired Parcels 723 in fee and contains the language “Fee W/A”, which means “fee with access to abutting owners” (Regan v. Lanze, 40 N.Y.2d 475, 484 [1976]). Parcel 734 was acquired by the filing of Map 639 (Exh. “D”) and is labeled “fee”, with no indication that it was “without access”. Where an appropriation map is not labeled “without access”, a right of access is not denied by the appropriation (Serf Realty Co. v. State of New York, 5 A.D.3d 584 [2d Dept. 2004]). Together, Parcels 723, and 734 form a continuous 48 to 54 foot wide right of way, running approximately 922 feet from Bay Boulevard to the former County property. Where no access by abutting owners is intended, the taking map is labeled a “Controlled Access Taking”. Such is the case in this matter, where the boundary line between Parcel 734, and Parcel 724 to its east is so labeled, and thus parcel 724 was taken in fee without the right of access to the abutting property (Affidavits of Martin Oliner and Martin Read, Annexed to the Notice of Motion). Thus, as opposed to plaintiff’s parcel, Parcel 724 does not enjoy access to Parcel 734. Defendants’ contention that the State is the owner in fee of Parcels 723 and 734 is correct. But they were acquired by the filing of the acquisition maps, specifically giving access to the property to the west, formerly Nassau County, and now Inwood Land Holdings, Inc. The fact that they are not public highways, and have been obstructed by the State by storing rock and debris, are irrelevant to the right afforded plaintiff by virtue of taking the Parcels with the explicit right of access to plaintiff’s premises. The motion by plaintiff for summary judgment declaring that it has the absolute right to ingress and egress to and from its property over land owned by defendant, identified as Parcels 723 and 734 on Exhs. “C” and “D”, for access to and from Bay Boulevard to the north, is granted. The Cross-motion by defendants is in all respects denied. To the extent that requested relief has not been granted, it is expressly denied. This constitutes the Decision and Order of the Court. Dated: August 13, 2019 Mineola, New York
