Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the May 27, 2016 mailing of "Constructive Notice":

Village Streets by Prescription

The New York State Village Law provides that lands within a village which have been continuously used by the public as a street for ten years or more are deemed to be a village street by prescription. The statute is silent, however, about who decides when prescription has occurred.

The Appellate Division, Second Department has indicated the village Zoning Board of Appeals has the authority to decide. Matter of Sherwin v. Village Of Goshen Zoning Board of Appeals, 2016 NY Slip Op 3890, (2nd Dept. May 18, 2016) was an Article 78 proceeding challenging the issuance of a building permit. In a two-sentence order, the panel affirmed the issuance because “the determination of the … Zoning Board of Appeals that McNally Street had become a village street pursuant to Village Law §6-626 and, therefore, that a building permit was properly issued … has a rational basis and is not arbitrary and capricious.”


The brief decision omits the underlying facts of the dispute. We can’t tell if the petitioner claimed to own McNally Street, or was merely a neighbor opposed to the permit. Were he only a neighbor, how can the ZBA determination bind the owner of McNally Street? The scant reported case law on §6-626 has hitherto involved a court determining the prescription question in an RPAPL Article 15 declaratory judgment. In Sherwin, the Court implicitly recognized the authority of a ZBA determination, subject only to Article 78 “rational basis” review.