83 Misc. 2d 221 | N.Y. Sup. Ct. | 1975
This is an application for a stay or preliminary injunction pending a hearing on the propriety of certain highway curbing and curb cut work proposed for the State highway contiguous to plaintiff’s property. The procedural basis for the suit is article 78 of the CPLR, specifically, the request to review the alleged failure of the commissioner to provide adequate substitute access.
Certainly, plaintiff is correct in arguing that the State must
The plaintiff, perhaps in recognition of these facts, frames its application as a review pursuant to article 78 of the administrative discretion of the commissioner to proceed as indicated in alleged violation of plaintiffs rights. The effort here is to avoid the jurisdictional problem in the emphasis upon the simple administrative functioning of the department. If this approach is to succeed there must be some statutory duty which the commissioner is failing to perform. None of the statutes cited by plaintiff, save section 54-a of the Highway Law, are even arguably in point. Section 38 of the Highway Law deals with contracts for the construction of improvement of highways, i.e., as between the State and its subcontractors. Section 30 of the Highway Law deals with the State’s right to appropriate realty for highway construction. On the papers before this court, we do not here deal with a taking. Section 59 of the Highway Law deals with additional width and types of construction or repair or reconstruction work. Section 62 of the Highway Law involves the improvement of alignment and of dangerous conditions or repair work. Again, neither of these sections involves mandatory requirements on the department vis-á-vis the private owner and his right to substitute access. Only section 54-a is possibly in point. That section deals with change of grade. The papers before this court do not indicate whether a change of grade is involved in the proposed work. Moreover, even if the statute applies, it requires only that the commissioner on the request of the owner "cause the reestablishment of the entrance, approach or driveway to be adjusted to the new highway grade”. Further, upon such "adjustment” the statute provides that "the details of the work shall be as determined by the commissioner of transportation”. Whether section 54-a applies