        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1192
CA 13-00029
PRESENT: SMITH, J.P., CENTRA, FAHEY, CARNI, AND WHALEN, JJ.


JOSHUA MORRIS AND JESSICA MORRIS,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

TOWN OF LOCKE AND TOWN OF LANSING,
DEFENDANTS-RESPONDENTS.


JOSHUA MORRIS, PLAINTIFF-APPELLANT PRO SE.

JESSICA MORRIS, PLAINTIFF-APPELLANT PRO SE.

ANDREW S. FUSCO, AUBURN, FOR DEFENDANT-RESPONDENT TOWN OF LOCKE.

THALER & THALER, ITHACA (GUY K. KROGH OF COUNSEL), FOR
DEFENDANT-RESPONDENT TOWN OF LANSING.


     Appeal from a judgment (denominated order) of the Supreme Court,
Cayuga County (Thomas G. Leone, A.J.), entered March 30, 2012 in a
declaratory judgment action. The judgment, among other things,
granted the cross motions of defendants for summary judgment
dismissing the amended complaint.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reinstating the amended complaint
and as modified the judgment is affirmed without costs in accordance
with the following Memorandum: Plaintiffs commenced this action
seeking, inter alia, a declaration that Robinson Road is a public
highway and thereafter moved for summary judgment with respect to that
requested relief. Defendants cross-moved for summary judgment
dismissing the amended complaint contending, inter alia, that Robinson
Road had been abandoned by nonuse. Supreme Court granted the cross
motions, declaring in its bench decision that, even if Robinson Road
had been a public highway, it had been abandoned. The court’s
declaration was proper because even assuming, arguendo, that the road
was once a public highway, we agree with defendants that the court
properly determined that they met their burden of establishing that
Robinson Road had been abandoned by nonuse (see Highway Law § 205 [1];
Pless v Town of Royalton, 185 AD2d 659, 659, affd 81 NY2d 1047). In
opposition, plaintiffs failed to demonstrate that any use of the road
since 1935 was other than occasional limited use that does not amount
to use as a highway, which requires “[t]ravel . . . in forms
reasonably normal” (Town of Leray v New York Cent. R.R. Co., 226 NY
109, 113; see Matter of County of Suffolk [Arved, Inc.], 63 AD2d 673,
                                 -2-                          1192
                                                         CA 13-00029

674). Plaintiffs failed to preserve for our review their contention
that the abandonment of Robinson Road constituted an unconstitutional
taking without just compensation (see Melahn v Hearn, 60 NY2d 944,
945). Nevertheless, the court erred in dismissing the amended
complaint in this declaratory judgment action, and we therefore modify
the judgment accordingly (see generally Tumminello v Tumminello, 204
AD2d 1067, 1067).

     In light of our determination, we do not reach defendant Town of
Lansing’s alternate grounds for affirmance.




Entered:   November 15, 2013                    Frances E. Cafarell
                                                Clerk of the Court
