When Non-Maintenance Equals Maintenance
The New York State courts have long held that lands “used by the public as a street for ten years or more” and “continuously maintained and repaired” by an incorporated village “shall be a street with the same force and effect as if it had been duly laid out and recorded as such." In Matter of Soldatenko v. Village of Scarsdale ZBA, 2016 NY Slip Op 03002 (2nd Dept., April 20. 2016), the Appellate Division determined that proof of ongoing “maintenance” or “repair” is not needed to create a street by prescription.
Soldatenko concerned the dead-end segment of a village street. The evidence established the Village had paved the segment more than ten years ago, and the public used it in a manner indistinguishable from the surrounding roadway. There appeared to be no evidence of active “maintenance” subsequent to the initial paving.
The opinion observed that “while the subject pavement is cracked in places and the curbing that is there has not been refreshed in some time, the surrounding roadway is in the same condition. The record is clear that the Village maintained the subject area in the same manner as the remainder of Farragut Road.”
Comment:
The “continuously maintained and repaired” requirement is itself a judicial embellishment to a statute that merely requires naked use by the public. Soldatenko focuses the inquiry on whether the disputed area was continuously treated in the same fashion as the surrounding roadway. Would the result have differed had the segment initially been paved by someone other than the Village, and subsequently “non-maintained” in the same manner as the surrounding roadway?