Borducci v. City of YonkersBorducci v. City of Yonkers
In an action, inter alia, to quiet title to real property, the defendant City of Yonkers appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Marbach, J.), entered July 8, 1987, which granted the plaintiffs’ motion for summary judgment, and, inter alia, held that they had good title to the properties in question and that those properties were free of any easements of ingress and egress.
Ordered that the order and judgment is modified, on the law, by deleting the third through the seventh decretal paragraphs thereof and substituting therefor provisions denying those branchеs of the motion which were for summary judgment declaring (1) that the land in the bed of Dewey Avenue, as shown on the map of Glen Washington Park and the tax map of the City of Yonkers, is free of any easement of egress and ingress and of any other encumbrance, (2) that any and all persons other than the plaintiffs are barred from claiming any interest in the bed of Dewey Avenue аs shown on those maps, (3) that the defendant be directed to remove from all maps the designation of Dewey Avenue as a street, from the rear of the plaintiffs’ lots 1 and 8 to the еasterly side of Noble Avenue, (4) that the defendant designate by a lot number that each one half of the land of the bed of Dewey Avenue belongs to the plaintiffs, respectively, аnd (5) that the defendant be enjoined from preventing the plaintiffs Peter Borducci and Frank Borducci from using their one half of the land in the
In this action the plaintiffs seek a judgment declaring (a) that the plaintiffs have good title in fee simple absolute from their respective lots to the center line of Dewey Avenue as shown on the map of Glen Washington Park and the tax map of the City of Yonkers, (b) that the land in the bеd of Dewey Avenue, as shown on those maps, is free of any easement of egress and ingress and of any other encumbrance, (c) that any and all persons other than the plaintiffs are barred from claiming any interest in the bed of Dewey Avenue, as shown on those maps, (d) that the defendant be directed to remove from all maps the designation of Dewey Avenue as a street, from the rear of plaintiffs’ lots 1 and 8 to the easterly side of Noble Avenue, (e) that the defendant designate by a lot number that one half of the land of the bed of Dewey Avenue belongs to the plaintiffs, respectively, and (f) that the defendant be enjoined from preventing the plaintiffs Peter Borducci and Frank Borducci from using their one half of the land in the bed of Dewey Avenue as additional floor area for the improvement of their lot 1 on the above maps in compliance with the defendant’s building code.
The real property in question is shown on the map of Glen Washington Park, Yonkers, New York, made by H. H. Spindler, City Surveyor, in December 1899 and filed with the Register of Westchester County, on October 28, 1902, at volume 5, page 17, also known as map 1253. The plaintiffs Peter Borducci and Frank Borducci acquired title to lots 1, 2 and 3 in block 10 of that map by reference to that map in a deed of conveyance from John and Anne Labosky and Michael and Pearl Bybel dated February 29, 1980. The plaintiffs Charles and Theresa Bilangino acquired lots 5, 6, 7 and 8 in block 9 on the same map by reference to that map in a deed of conveyance from Mary Slechta, dated June 1, 1954, and recorded on June 3, 1954. Lots 1 in block 10 and 8 in block 9, fronting on Dewey Avenue, as shown on the map, wеre formerly owned in fee together with other lots on the maps by Alexander P. W. Kinnan and Charlotte O. M. Kinnan, and in their conveyances of those lots to the plaintiffs’ predecessors in titlе, the Kinnans allegedly included title extending to the center line of Dewey Avenue.
On or about September 8, 1986, the plaintiffs commenced the instant action. The attorneys for the рarties, however, agreed to hold the matter in abeyance while the plaintiffs made a request through their attorneys to the Yonkers City Council to consider legislation which would discontinue that portion of Dewey Avenue which forms the basis of this action. By letter dated January 30, 1987, the plaintiffs were advised by the Rules Committee of the Yonkers City Council that it would not consider suсh legislation at that time. Thereafter, the defendant then served its answer in this action.
The plaintiffs then moved for summary judgment, claiming that by reason of their conveyances to one аnother, they owned, in fee simple absolute, the bed of Dewey Avenue abutting their respective lots to the center line of the street. They further claimed that no other persоn had an interest in that portion of Dewey Avenue, and that that portion of Dewey Avenue was nothing more than a "paper street”. They claimed that as long as it remained on the map of the City of Yonkers, it created a cloud on their title and it prevented the Borduccis from using their one half of the land in the bed of Dewey Avenue as additional floor area for the improvement of lot 1. By order and judgment entered July 8, 1987, the plaintiffs were granted the relief sought in their complaints. This appeal ensued.
It is well settled that when an owner of property sells lots with reference to a map, which lots abut upon a street as shown on a map, the grantees are entitled to have the land shown as a street left open forever as a street or highway and this is so whether or not it is accepted by the town or municipality as a public highway (see, White’s Bank v Nichols,
However, although the court found that no easements exist and that all other persons should be barred from claiming any interest in the bed of Dewey Avenue, the court relied on insufficient factual data in coming to that conclusion.
Furthermore, we agree with the defendant’s contention that the City Council’s decision not to close the portion of Dewey Avenue in question was legislative in character, and not subject to judicial scrutiny (see, General City Law § 20 [7]; § 29; Kaskel v Impellitteri,
Finally, on the basis of this record, the court acted prematurely in enjoining the defendant from preventing the plaintiffs Peter Borducci and Frank Borducci from using the land in the bed of Dewey Avеnue as additional floor area for the improvement of their lot. We note that there is insufficient information in the record to indicate whether (1) an application was made to the Building Department of the City of Yonkers for the improvement of lot 1 and denied because of an inadequate floor area ratio, or that (2) upon such denial by the Building Dеpartment, an area variance was sought from and denied by the Zoning Board of Appeals, or, alternatively, that (3) upon application to the Zoning Board of Appeals pursuant to General City Law §35, and a showing that the land within the mapped street was not yielding a fair return on its value to the owner, a permit allowing for building in a portion of the bed of thе publicly mapped street was denied. Therefore, it cannot be said, from this record, that those plaintiffs exhausted their administrative remedies.
In view of the foregoing, those branches of the plaintiffs’ motion which were for summary judgment declaring that they