DOT wins dismissal

Cypress Hills sought at-grade crossing of Jackie Robinson Parkway. In 2006, an appellate court ruled that Cypress Hills Cemetery had an easement to cross the Jackie Robinson Parkway at the point where two bridges, built by the City in 1928, had united the Cemetery parcels when construction of the Parkway divided the Cemetery. The court also ruled that the burden of maintaining or replacing the bridges fell on the Cemetery, not on the City. 4 CityLand 15 (Feb. 15, 2007). Before the appellate court decision, the City demolished the bridges following a lower court ruling in the City’s favor.

The Cemetery then requested that DOT remove the barriers on the Parkway and install traffic control devices so that the Cemetery could cross the Parkway at the point of the easement. DOT informed the Cemetery that it did not have an easement to cross the Parkway at-grade level, but rather that its easement applied to the underpass.

Cypress Hills then filed a new action against DOT, claiming that based on the appellate decision, it had an implied easement to cross the Parkway at-grade and that DOT was interfering with its rights. DOT sought to dismiss the complaint. DOT also submitted evidence that at-grade crossings would cost the City $1.6 million and be unsafe due to turns along the Parkway route.

Justice Robert J. Miller dismissed the complaint, ruling that Cypress Hills was barred from litigating the issue of an at-grade easement because it had an opportunity to raise the issue in its earlier suit. Additionally, the court found that the Board of Estimate, which made the determination in 1928 not to permit grade-level crossings of the Parkway near the Cemetery, was the authorized decision-maker under the City Charter at the time and the court could not review the Board’s determination. Finally, the court agreed with DOT’s argument that the decision to allow grade-level crossings at that location was a complex issue of transportation planning that the court should not be involved with.

Cypress Hills Cemetery v. New York City, 2008 N.Y. Slip Op. 510004(U) (N.Y.Cty.Sup.Ct. May 19, 2008) (Miller, J.) (Attorneys: Richard J. Dea, for Cemetery; Michael A. Cardozo, Warren Shaw, for NYC).

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