State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 6, 2014 517966 

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RED HOUSE FARM, INC.,

Appellant,

v MEMORANDUM AND ORDER

LAD ENTERPRISES, LLC,

Respondent.

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Calendar Date: September 10, 2014

Before: Lahtinen, J.P., McCarthy, Rose and Lynch, JJ.

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Tabner, Ryan and Keniry, LLP, Albany (William F. Ryan Jr.

of counsel), for appellant.

Goldman Attorneys, PLLC, Albany (Paul J. Goldman of

counsel), for respondent.

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Rose, J.

Appeal from an order of the Supreme Court (Nolan Jr., J.),

entered September 4, 2013 in Saratoga County, which, among other

things, granted defendant's cross motion to dismiss the

complaint.

Plaintiff and defendant own separate parcels of real

property located on Thompson Hill Road, a town highway by use, in

the Town of East Greenbush, Rensselaer County. Both parcels are

located in the Town's sewer district. At defendant's request,

the Town Board of East Greenbush authorized defendant to install,

at its own expense, a main sewer line under the roadway

traversing plaintiff's parcel. Plaintiff objected and commenced

this action seeking, among other things, to enjoin installation

and use of the sewer line. When plaintiff moved for a
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preliminary injunction, defendant cross-moved to dismiss the

complaint for failure to state a cause of action. Supreme Court

granted the cross motion and dismissed the complaint, finding

that the installation of the sewer line was authorized by Town

Law § 198 (1) (e). Plaintiff appeals.1 

We affirm. Plaintiff's contention that the sewer line

imposed a burden on its property beyond the necessary use of the

highway as a public easement ignores the plain language and

legislative history of Town Law § 198. As relevant here, that

statute provides that sewer districts established by a town board

may cause sewer pipes to be laid in or below the surface of any

public highway "as a necessary use of the highway and for highway

purposes, without obtaining any easement therefor from the owner

of the fee of the land in said public highway" (Town Law § 198

[1] [e]). 

The current version of Town Law § 198 was amended in 1938

(see L 1938, ch 634, § 2) to include the language that we have

quoted above in order "to make definite and clear" a town's power

to lay sewer pipes, storm water sewers and water mains under

highways (Mem of Association of Towns, Bill Jacket, L 1938, ch

634 at 6-7). Given the plain language of the statute and its

legislative history (see generally Riley v County of Broome, 95

NY2d 455, 463-464 [2000]; Matter of Valentine v American

Airlines, 17 AD3d 38, 40 [2005]), we agree with Supreme Court

that the installation of the sewer lines without plaintiff's

permission was authorized "as a necessary use of the highway and

for highway purposes" by Town Law § 198 (1) (e), and the

complaint was properly dismissed. Plaintiff's remaining

1 Although defendant claims that the appeal should be

dismissed because plaintiff sold its property during the pendency

of the appeal, we cannot agree. The complaint has not been

rendered academic to the extent that it seeks damages for

trespass and, in any event, plaintiff may continue the action

until the current owner is substituted (see CPLR 1018; J.C. Tarr,

Q.P.R.T. v Delsener, 70 AD3d 774, 779 [2010]; Pritzakis v Sbarra,

201 AD2d 797, 798 [1994]; Bova v Vinciguerra, 139 AD2d 797, 799

[1988]). 
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contentions have been considered and determined to be unavailing. 

Lahtinen, J.P., McCarthy and Lynch, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court