SUPREME COURT: STATE OF NEW YORK COUNTY OF ROCKLAND -------------------------------------------------------------------)( Daniel and Sarah Rivka Goldfarb; Mechel and Malky Greenwald; Yechial Maier and Ester Laufer; Fishel and Tili Roth; Chesky and Ruchel Litzman; Ari and Ruth Parness; Sol and Sarah Schlesinger; Herman and Harriett Friedman; Jacob Gestentner; Jacob Grossman and David To commence the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. DECISION & ORDER Index No: 2068!2015 Braun, Petitioners, -againstTown of Ramapo, its Town Board and Christopher P. St. Lawrence, Town Supervisor and Moses Friedman, Respondents. -------------------------------------------------------------------)( HON. VICTOR J. ALFIERI, JR., A.J.S.C. Petitioners commenced this hybrid Article 78 proceeding and declaratory judgment action seeking, inter alia, a temporary injunction and a judgment declaring that the property is dedicated parkland requiring legislative approval before the property can be sold. The Court has considered the following papers on the motion: I. 2. 3. Order to Show Cause! Amended Verified Petition and Exhibits A through F annexed thereto! Memorandum of Law Memorandum of Law in Opposition! Verified Memorandum of Law in Reply. In this dispute over the subject property, Petitioners have not shown a risk of irreparable harm, a likelihood of success, or a balancing ofthe equities in their favor. The Petitioners claim that the subject property is dedicated parkland and cannot be transferred without legislative approval. It is well settled that parkland is inalienable, held in trust for the public, and may not be sold without the express approval of the State Legislature (see, Angiolillo v Town of Greenburgh, 290 AD2d I [2d Dept. 2001] Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623 [2001]). To establish that property has been dedicated for public use, there generally must be an unequivocal express or implied offer by the owner and, where required, an express or implied acceptance by the public (see, Gewirtz v. City of Long Beach, 69 Misc.2d 763, 770, affd. 45 A.D.2d 841 [2d Dept. 1974]). Thus, a parcel of property may become a park by express provisions in a deed or legislative enactment or by implied acts, such as the continued use of the parcel as a park (see, Matter of Lazore v. Bd. of Trustees of ViI. of Massena, 191 A.D.2d 764, 765 [3d Dept. 1993]). Notably, whether a parcel has become a park by implication is a question of fact which must be determined by such evidence as the owner's acts and declarations and the circumstances surrounding the use of the land (see, Matter of Lazore, supra, at 766). The intent to dedicate may be shown by either acts or declarations so long as that "act or declaration on the part of the owner show[ s] a present, fixed, unequivocal purpose to dedicate" (II McQuillin, Municipal Corporations NYJur2d, Dedication, S 9). S 33.30 [3d ed]; 43 Similarly, the acceptance ofthe offer by the public, requires "the same unequivocal and convincing proof necessary to prove an intent to dedicate" (II McQuillin, Municipal Corporations S 33.54 [3d ed] ), and the burden of proof rests on the party asserting that the land has been dedicated for public use (see, Winston v. Village of Scarsdale, 170 A.D.2d 672, 673 [2d Dept. 1991]). Petitioners have not met their burden as they have not submitted any evidence to demonstrate that the subject property was dedicated to the Town as parkland or that the Town intended the property to be dedicated as parkland. In fact, the 1970 subdivision map, annexed to the respondent's opposition as Exhibit A indicates that the subject property was deeded to the Town for "general municipal purposes". The limited improvements installed by the Town such as the pathway leading from the public street to WeIdler Park, a culvert and lighting along the pathway are irsufficient to establish that the property has been dedicated by implication. see, Pearlman v Anderson, 62 Misc.2d 24 (Supreme Ct. Nassau Co.) 1970, affd 35 AD2s 544 (2d Dept. 1970). It is undisputed that the only use of the subject property is the use of the paved pathway for pedestrian and bicycle traffic. It is also undisputed that the subject property was also used as a residence for the family of the former caretaker of Monsey Jewish Center, further evidence that the property was never intended to be a public park. Further, respondents have represented that the terms of the sale ofthe property provides for a walkway area as an easement so that the public use of the subject property shall continue without interruption. The Town has represented that same shall continue to be maintained by at the Town's expense. Petitioners have not shown any danger of irreparable harm if the injunction is not granted . . . - -_.- . --- ,--:;..:.~-;---- --~-- With respect to petitioners' second and third causes of action, their reply papers readily admit that there was no violation of the Open Meetings Law; defeating any likelihood of success. Having read the foregoing papers and due consideration having been given, it is hereby ORDERED that Petitioners' motion for a temporary injunction is denied; and it is further ORDERED that Petitioners' petition is denied. This shall constitute the decision and order of this court. ENTER Dated: December;', 2015 New City, New York TO: Carlet, Garrison, Klein & Zaretsky Attorneys for Petitioners 623 Fifth Avenue, 24th Floor New York, New York 10022 Michael 1. Klein, Esq., Town Attorney Attorney/or Respondents 237 Route 59 Suffern, New York 1090 I \