76 Misc. 2d 725 | N.Y. Sup. Ct. | 1973
The defendant moves for dismissal of the complaint in this action for a declaratory judgment and for a permanent injunction, and also moves for dismissal of a motion brought by the plaintiffs for a preliminary injunction pendente lite which is returnable at a Special Term to be held on November 9, 1973. Plaintiffs’ motion for a preliminary injunction is not before this court and, therefore, cannot be considered, except as it may be affected by the conclusion arrived at on the motion for dismissal of the complaint. As to plaintiffs’ opposition to this motion on procedural grounds, defendant was under no compulsion to move as provided by CPLB, 2215, nor is this a matter in which a Judge has decided a prior motion as provided in CPLB 2217 (subd. [a]).
The complaint alleges in substance that plaintiffs are the owners of real property in Greene County; that the defendant has entered upon their lands without their consents or permission and has performed certain activities thereon which have interfered with the quiet enjoyment and use of said lands, and have interrupted and impaired plaintiffs’ possession of their real property. It is further alleged that damage and injury has been caused by the defendant to the lands of the plaintiffs. They seek a judgment declaring the entries by defendant upon plaintiffs ’ lands to be illegaltrespasses, and beyond the powers granted to defendant under the Public Authorities Law, and if found to be authorized by statute, then such statute be declared unconstitutional in that it provides for taking of private property for public use without just compensation therefor. Plaintiffs also seek to enjoin defendant from entering upon and conducting activities on their lands, unless and until defendant obtains rights to enter and conduct such activities by condemnation or otherwise.
There can be no question that the defendant and its duly authorized agents and employees had the right to enter upon any real property for the purpose of making surveys or examinations of real property as may be necessary or convenient for the purposes of this title. (Public Authorities Law, § 1007, subd. 8.) The specific purposes for entering upon the lands of plaintiffs are clearly authorized by title 1 of article 5 of the Public Authorities Law. In my view therefore, the entry upon plaintiffs’ lands to conduct the activities engaged in by the defendant does not establish any legal basis for complaint on the part of the plaintiffs. Nor does the fact that the statute authorizing entry upon private property makes no provision for holding defendant liable for damage to such property have any effect on the validity of the statute. There can be no question of defendant’s liability for damages caused by its activities, and it has made it clear to the plaintiffs that it is prepared to compensate them for any damage resulting from such activities.
While the factual averments of a complaint must be taken as true on a motion to dismiss the complaint, the court is not bound to accept unsubstantiated legal conclusions drawn by the pleader, or the pleader’s interpretation of the statutes involved. The allegations of the complaint under attack here set forth either legal conclusions without factual support or pertain to the exercise of powers delegated to the defendant by the Legislature which present no justiciable issue and are not reviewable as here pleaded. (City of Albany v. McMorran, 16 A D 2d 1021 [3d Dept.]; Sleepy Hollow Val. Comm. v. McMorran, 27 A D 2d 665; Matter of Brown v. McMorran, 23 A D 2d 661; Kaskel v. Impellitteri, 306 N. Y. 73, 80.)
Accordingly, the complaint is dismissed for failure to state facts sufficient to constitute a cause of action.