Appellate court upholds decision in Oppenheim property case

ALBANY — The Appellate Division of state Supreme Court last week upheld a previous decision to not dismiss a man’s property complaint against the town of Oppenheim.

The appeals court affirmed a Jan. 16, 2019, decision by Supreme Court in Johnstown in Fulton County impacting Charles Johnson’s case against the town.

The appellate decision entered Feb. 25 involved Johnson commencing action alleging that the defendants — the town of Oppenheim — wrongfully entered his property and removed brush and trees that were located on it.

The Supreme Court agreed his case could ho forward and shouldn’t be dismissed and the town disputed the decision.

Appellate judges said the town of Oppenheim may be liable in situations where conditions adjacent to a highway interfere with a “motorist’s safe and legal use of the roadway.” But the court ruled the discretion to remove trees or limbs must “not be abused.”

“Defendants argue that the trees and brush at issue were encroaching on the highway and, as part of their duty to maintain the highway for safe passage, it was necessary to have them removed,” the decision noted. “Plaintiffs counter that a question of fact exists as to whether the removal of the entire trees and brush was necessary and whether defendants could have satisfied their duty by leaving the trees and merely trimming their branches. We agree with plaintiffs.”

The Appellate Division said the record discloses that the town of Oppenheim removed the trees and brush at issue because branches were hanging over the highway and hitting snowplows that were clearing the highway.

Defendant Richard Crum, the former Oppenheim highway superintendent, testified at his deposition that he did not request permission from Johnson to remove the trees and brush.

“Crum, however, also testified that the highway could have been maintained by just trimming the tree branches and that a member of a crew involved in cutting the trees and brush asked him if they could just be trimmed,” court papers said. “Crum explained that the reason why trimming was not done was because the town did not have the necessary equipment to do so. Crum also stated that when work was completed, the surrounding area at issue was maintained in that there was more sunlight and it looked a lot better.'”

Appellate judges said a question of fact exists whether it was completely necessary to remove the trees and brush from Johnson’s property.

“Furthermore, Crum’s testimony reveals an issue of fact as to whether the removal was done for the purpose of safe egress on the highway or for aesthetic purposes,” the judges ruled. “Accordingly, Supreme Court correctly denied the motion.”


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