Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department

Decided on July 24, 2026

32 CA 25-00828

Present: Lindley, J.P., Bannister, Ogden, Nowak, And Delconte, JJ.

Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Emilio Colaiacovo, J.), entered March 12, 2025, in an action alleging violations of the public trust doctrine and of the Green Amendment. The order and judgment granted the motions of defendants to dismiss the amended complaint and dismissed the amended complaint.

Nowak, J.

[*1]

It is hereby ORDERED that the order and judgment so appealed from is modified on the law by denying the motion of defendants New York State Department of Transportation, Marie Therese Dominguez, in her official capacity as Commissioner of the New York State Department of Transportation, Stephanie Winkelhake, P.E., in her official capacity as Chief Engineeer of the New York State Department of Transportation and the State of New York and reinstating the amended complaint against those defendants, and as modified the order and judgment is affirmed without costs.

Opinion by Nowak, J.: Plaintiffs are individual residents of East Buffalo who contend that they suffered adverse health consequences due to traffic on a nearby expressway (portions of New York State Routes 33 and 198) and an unincorporated association of people who live or work near the expressway. They commenced this action alleging that defendants: (1) violated the public trust doctrine by alienating parkland comprising the former Humboldt Parkway for the construction of the expressway; and (2) are violating the Green Amendment to the New York State Constitution (NY Const, art 1, § 19) by continuing to maintain and operate the expressway. Plaintiffs appeal from an order and judgment that granted the separate motions of defendant City of Buffalo (City) and defendants New York State Department of Transportation (DOT), Marie Therese Dominguez, in her official capacity as Commissioner of the DOT, Stephanie Winkelhake, P.E., in her official capacity as Chief Engineeer of the DOT, and the State of New York (collectively, State defendants) to dismiss the amended complaint against them pursuant to, inter alia, CPLR 3211 (a) (7). We conclude that Supreme Court erred in granting the motion of the State defendants (DOT motion).

I.

In 1869, the New York State Legislature passed Chapter 165 (Buffalo Park Act) to authorize "the selection and location of certain grounds for public parks in the city of Buffalo, and to provide for the maintenance and embellishment thereof" (L 1869, ch 165). The Buffalo Park Act created "[p]ark [c]ommissioners" who were authorized to prepare a report selecting the areas of land "declared to be public places, and [which] shall be deemed to have been taken by said city of Buffalo for public use, as and for a public park or parks, and approaches thereto, and public streets connecting the same" (L 1869, ch 165, § 4). After setting forth the steps required for the City to acquire the necessary lands (see L 1869, ch 165, §§ 5-11), the Buffalo Park Act provided that "said lands shall vest forever in the city of Buffalo, for the uses and purposes in this act mentioned, and the said park commissioners shall be entitled to enter upon, take possession of, and forever use the said land for the purposes of a park or parks, approaches thereto, and streets connecting the same" (L 1869, ch 165, § 11 [emphasis added]). The park commissioners were then responsible for the "government and maintenance" of the lands acquired at the expense of the City (L 1869, ch 165, § 27).

Pursuant to the Buffalo Park Act, the park commissioners selected and the City acquired interconnected tracts of land, as designed by renowned landscape architect Frederick Law Olmsted, to create what became known as the Buffalo Olmsted Park System. The Buffalo Olmsted Park System included the former Humboldt Parkway, which connected Delaware Park to the north with "the Parade" (presently, Martin Luther King, Jr. Park) to the south. Humboldt Parkway was approximately two miles long and two hundred feet wide. Two roadways running along its length enclosed 43.2 acres of parkland—a "broad, tree-shaded grass-belt" known as "the Meridian"—which included a bridle path for horseback riding.

In his design of Humboldt Parkway, Olmsted distinguished the purposes of the exterior roadways from the interior Meridian. In 1868, he wrote that the roadways were designed "to answer the purpose of streets, for ordinary traffic, which could thus be disassociated from the movement to and from the park." Conversely, he considered the interior to be "a pleasure ground . . . suitable for a short stroll, for a playground for children, and an airing ground for invalids, and a route of access to the large common park of the whole city of such a character that most of the steps on the way to it would be taken in the midst of a scene of sylvan beauty and with the sounds and sites of the ordinary town business, if not wholly shut out, removed to some distance and placed in obscurity. The way itself would thus be more park-like than town-like." After Humboldt Parkway opened in 1873, it was used for over 80 years largely as Olmsted had envisioned: as a park approach to both Delaware Park and the Parade and for recreational purposes—including playing games, picnicking, running cross-country, and horseback riding on the bridle path.

Beginning in 1957, much of Humboldt Parkway, including the Meridian, was replaced with New York State highways, i.e., portions of both the Scajaquada Expressway (New York State Route 198) and the Kensington Expressway (New York State Route 33), the latter of which was constructed as a below-grade highway in 1968. The authority for the construction of those highways (collectively, expressway) arose from a 1947 amendment to Highway Law § 349-e, which, in pertinent part, authorized state highways "along Humboldt parkway" from Delaware Park to Best Street, which borders the current Martin Luther King, Jr. Park (L 1947, ch 765, § 1). Since the time that the expressway replaced Humboldt Parkway, the United States Department of the Interior recognized the remaining parkways comprising the Buffalo Olmsted Park System—Bidwell Parkway, Chapin Parkway, and Lincoln Parkway—as parkland.

II.

In 2022, the State of New York (State) began an environmental review of a proposed project designed to cover or "cap" an approximately ¾-mile section of the Kensington Expressway, thereby creating a tunnel under a portion of what was the original Humboldt Parkway. Thereafter, plaintiffs commenced this litigation. As relevant here, plaintiffs allege in their amended complaint that Humboldt Parkway was expressly or impliedly dedicated as parkland and that the New York State Legislature did not include direct, specific authorization to alienate that parkland for non-park uses—i.e., the construction of the expressway—in violation of the public trust doctrine (second cause of action). Plaintiffs further allege that defendants' [*2]continued use and operation of the expressway violates the Green Amendment to the New York State Constitution (NY Const, art 1, § 19) which became effective on January 1, 2022 (first cause of action). With respect to both causes of action, plaintiffs seek declaratory and injunctive relief, along with attorneys' fees, costs, and disbursements. As noted, following motion practice, the court granted the DOT motion and the City's motion (City motion).

III.

In a non-declaratory judgment case, "a motion to dismiss under CPLR 3211 (a) (7) generally assesses only 'whether the facts as alleged fit within any cognizable legal theory' " (Matter of Kerri W.S. v Zucker, 202 AD3d 143, 153 [4th Dept 2021], lv dismissed 38 NY3d 1028 [2022], lv denied 42 NY3d 905 [2024], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]). "If so, the motion is denied and the case proceeds toward final adjudication. In declaratory judgment actions, however, CPLR 3211 (a) (7) empowers a court to grant judgment on the pleadings notwithstanding the absence of a motion for summary judgment" (Kerri W.S., 202 AD3d at 153; see Boryszewski v Brydges, 37 NY2d 361, 365 [1975]). "Because CPLR 3211 (a) (7) does double duty in declaratory judgment actions as both a facial sufficiency screening mechanism and an accelerated-judgment mechanism, a motion to dismiss a declaratory claim under that provision must be analyzed in three steps" (Kerri W.S., 202 AD3d at 154).

At the first step, " 'the only question is whether a proper case is presented for invoking the jurisdiction of the court to make a declaratory judgment, and not whether [any party] is entitled to a [particular] declaration' " (Parker v Hilton, 233 AD3d 1472, 1474 [4th Dept 2024]; see Hallock v State of New York, 32 NY2d 599, 603 [1973]). "To survive such a motion, '[t]he plaintiff's allegations must demonstrate the existence of a bona fide justiciable controversy, defined as a real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect' " (Parker, 233 AD3d at 1474). If there is a justiciable controversy, the inquiry moves to step two, and the court must decide whether factual issues preclude a summary determination of the parties' rights (see Kerri W.S., 202 AD3d at 154). Where no factual issues exist "and the only issues presented are questions of law or statutory interpretation" (id. at 155 [internal quotation marks omitted]), the court at step three denies the CPLR 3211 (a) (7) motion in order to "retain[ ] jurisdiction of the controversy," and it then immediately "declare[s] the rights of the parties, whatever they may be" (St. Lawrence Univ. v Trustees of Theol. School of St. Lawrence Univ., 20 NY2d 317, 325 [1967]).

IV.

Regarding plaintiffs' second cause of action asserting a violation of the public trust doctrine, we conclude that plaintiffs' allegations " 'demonstrate the existence of a bona fide justiciable controversy' " against the State defendants, but not the City (Parker, 233 AD3d at 1474). Indeed, inasmuch as plaintiffs have not alleged any conduct on the City's part that violates the public trust doctrine, we conclude that the court properly granted the City's motion to that extent.

The public trust doctrine "provides that dedicated parkland or public use land in New York is 'impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park [or non-public] purposes' " (Matter of Clover/Allen's Cr. Neighborhood Assn. LLC v M & F, LLC, 173 AD3d 1828, 1829 [4th Dept 2019], quoting Friends of Van Cortlandt Park v City of New York, 95 NY2d 623, 630 [2001]; see Matter of Glick v Harvey, 25 NY3d 1175, 1180 [2015]).

Here, as set forth above, plaintiffs allege that Humboldt Parkway was expressly or impliedly dedicated as parkland and that the New York State Legislature did not include direct, specific authorization to alienate that parkland for non-park uses—i.e., the construction of the expressway—in violation of the public trust doctrine. Inasmuch as the amended complaint is not "so imprecise and its allegations so inexactly stated that . . . it fails to state an identifiable cause of action . . . on which declaratory relief may be granted, [in] either [party's] favor" (Boryszewski, 37 NY2d at 368), the analysis moves to step two to determine whether " 'factual issues preclude a summary determination of the parties' rights' " on that cause of action (Matter of 16 Main St. Prop., LLC v Village of Geneseo, 225 AD3d 1204, 1208 [4th Dept 2024]).

While the State defendants assert that Humboldt Parkway was not dedicated as parkland, we conclude that there are factual issues which preclude a summary determination of the parties' rights (see generally Kerri W.S., 202 AD3d at 154-155). Parkland or public use land subject to the public trust doctrine may be dedicated expressly by legislative act or impliedly by ongoing public use (see Clover/Allen's Cr. Neighborhood Assn. LLC., 173 AD3d at 1830).

With respect to an express dedication, we conclude that there are issues of fact. The Buffalo Park Act declared all land acquired pursuant thereto, including for parks and park approaches alike, to be "public places, and . . . deemed to have been taken by said city of Buffalo for public use" (L 1869, ch 165, § 4 [emphasis added]), and that such land, including the land comprising the former Humboldt Parkway, "shall vest forever in the city of Buffalo . . . for the purposes of a park or parks, approaches thereto, and streets connecting the same" (L 1869, ch 165, § 11 [emphasis added]).

Moreover, there are factual issues whether the former Humboldt Parkway was impliedly dedicated as parkland. "A party seeking to establish . . . an implied dedication and thereby successfully challenge the alienation of the land must show that (1) [t]he acts and declarations of the land owner indicating the intent to dedicate [their] land to the public use [are] unmistakable in their purpose and decisive in their character to have the effect of a dedication and (2) that the public has accepted the land as dedicated to a public use" (Glick, 25 NY3d at 1180 [internal quotation marks omitted]).

As to the first prong of that test, the City acquired the land pursuant to the Buffalo Park Act, and plaintiffs established that the City constructed Humboldt Parkway to serve as part of the park system, and for no other purpose. Plaintiffs further established that Humboldt Parkway was identical in plan, function and purpose with Bidwell Parkway, Chapin Parkway, and Lincoln Parkway, and that those remaining Olmsted parkways have been recognized by the United States Department of the Interior as parkland. From the construction of Humboldt Parkway until its destruction over 80 years later, the 43.2-acre interior portion was continuously maintained first by the Buffalo Park Commissioners, and later by the Buffalo Department of Parks. Indeed, the City continues to own the land comprising the former Humboldt Parkway (and present expressway).

With respect to the second prong, plaintiffs submitted proof that the parkway was not only improved and maintained by the City, but was also utilized for recreational purposes by the public, including for playing games, picnicking, running cross-country, and horseback riding. The Office of the Attorney General has opined that "the acts of a municipality in improving land for park purposes and the use of the land by the public as a park can constitute a dedication of the land as a park. The determination of whether such acts and use amount to a dedication" (1981 Atty Gen [Inf Ops] 81-98; see also 1984 Ops Atty Gen No. 94-15) is, as here, a question of fact.

The State defendants rely upon decisions from Erie County Supreme Court (Holtz v Diehl, 26 Misc 224, 229-230 [Sup Ct, Erie County 1899]), and our court (People ex rel. Smith v Mosier, 134 App Div 4 [4th Dept 1909]), to support their assertion that Humboldt Parkway was never public parkland and thus that the court properly granted their motion with respect to the second cause of action. In our view, those decisions support the opposite conclusion. Holtz (26 Misc at 229-230) involved the creation of what would come to be the bridle path—a dedicated "speedway for the fast driving of horses . . . in Humboldt parkway" (id. at 225). The court in Holtz determined that the creation of the bridle path down the center of Humboldt Parkway was "very clearly within the power and discretion of the board of park commissioners, . . . for a strictly park purpose, and wholly upon park lands; lands over which no person save the board has any jurisdiction or the right to direct an improvement or nonimprovement" (id. at 229 [emphasis added]).

Likewise, in Smith (134 App Div at 4), we described Humboldt Parkway as "one of the parkways of the park approaches of the city of Buffalo, [which] constitutes a part of the system of continuous park lands, park approaches and parkways in said city" (id. at 5 [emphasis added]). The issue in Smith was whether the park commissioners, having permitted streets to be built to intersect Humboldt Parkway, could thereafter revoke that consent (id. at 7-9). Contrary to the State defendants' assertion, we did not declare Humboldt Parkway to be simply a street and not [*3]parkland. Rather, we determined that, because the City Charter required the park commissioners' consent if streets were to be built crossing the parkway (L 1891, ch 105, § 310) and because the commissioners unequivocally consented to the streets at issue crossing the parkway, the park commissioners could not "at will withdraw their former consent which was absolute and unconditional and unlimited as to time" (Smith, 134 App Div at 11).

Inasmuch as there are factual issues whether Humboldt Parkway was expressly or impliedly dedicated as parkland, we must address the State defendants' alternative grounds for affirmance that there is no cause of action for a violation of the public trust doctrine as a matter of law because the legislature explicitly alienated the land comprising the former Humboldt Parkway pursuant to Highway Law § 349-e, thereby allowing that land to be used as a multi-lane depressed expressway. Contrary to the State defendants' assertion, we conclude that the legislature did not explicitly alienate Humboldt Parkway pursuant to Highway Law § 349-e.

Because "parkland is impressed with a public trust," legislative approval is necessary "before it can be alienated or used for an extended period for non-park purposes" (Friends of Van Cortlandt Park, 95 NY2d at 630; see Matter of Avella v City of New York, 29 NY3d 425, 431 [2017]). Alienation of parkland "must be 'plainly conferred' through the 'direct and specific approval of the State Legislature' " (Avella, 29 NY3d at 431).

Highway Law § 349-e lists authorized routes for arterial highways for a number of cities throughout the State, and the legislature uses particular language when alienating parkland. For example, with respect to the City of Albany, the legislature designated a route near the area of Lark Street and Washington Park (see id.) and stated that "[p]ortions of this arterial route within and in the vicinity of Washington park may be built as a depressed highway as determined by the commissioner" (id. [emphasis added]). Likewise, in the City of Syracuse, the legislature explicitly authorized construction of an arterial route "within and in the vicinity of Clinton Square [a public park in downtown Syracuse] . . . as a depressed highway" (id. [emphasis added]).

Conversely, for the expressway at issue here, the legislature did not authorize its construction "within and in the vicinity" of Humboldt Parkway (where the expressway was ultimately located), but "along Humboldt parkway" (id. [City of Buffalo]). "Along" is not synonymous with "within." In the context of Highway Law § 349-e, we consider the use of "along" to authorize highway construction adjacent to an existing path or border, while "within" authorizes the alienation of land for another purpose. In short, we give the terms their ordinary meaning (see People v Versaggi, 83 NY2d 123, 129 [1994]): "within" means inside of, "along" means adjacent to.

Having expressly granted authority to construct arterial highways within parks in other cities and having declined to do so with respect to Humboldt Parkway, it cannot be said as a matter of law that the legislature "plainly conferred" the alienation of Humboldt Parkway (Avella, 29 NY3d at 431 [internal quotation marks omitted]). "The maxim expressio unius est exclusio alterius is applied in the construction of the statutes, so that where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded" (McKinney's Cons Laws of NY, Book 1, Statutes § 240). Thus, we agree with plaintiffs that the court erred in granting the DOT motion with respect to the second cause of action.

V.

We likewise agree with plaintiffs that the court erred in granting the DOT motion with respect to the first cause of action asserting a violation of the Green Amendment. The Green Amendment to the New York State Constitution states that "[e]ach person shall have a right to clean air and water, and a healthful environment" (NY Const, art I, § 19; see Fresh Air for the Eastside, Inc. v State of New York, 229 AD3d 1217, 1217 [4th Dept 2024], appeal dismissed 42 NY3d 1084 [2025], lv denied 44 NY3d 907 [2025]). Plaintiffs specifically allege in the amended complaint that the Green Amendment is self-executing, and defendants did not dispute that contention below. To the extent that defendants argue on appeal that the Green Amendment is not self-executing, that argument is not properly before us (see Ciesinski v Town of Aurora, 202 [*4]AD2d 984, 984 [4th Dept 1994]), and we conclude that plaintiffs' allegations " 'demonstrate the existence of a bona fide justiciable controversy' " against the State defendants (Parker, 233 AD3d at 1474)^FN1. However, inasmuch as plaintiffs did not allege that the City engaged in any conduct in violation of the Green Amendment, we conclude that the court properly granted the City motion with respect to the first cause of action.

With respect to step two, plaintiffs adduced evidence that the ongoing operation and maintenance of the expressway has led to increased air and noise pollution, higher instances of lung and heart disease, lower life expectancy, and death. Thus, we conclude that factual issues preclude a summary determination of the parties' rights as to plaintiffs' first cause of action against the State defendants based upon the continued operation and maintenance of the expressway (see generally Kerri W.S., 202 AD3d at 154-155).

VI.

Based upon the foregoing, we conclude that plaintiffs have presented viable causes of action against the State defendants for violating the public trust doctrine by alienating parkland within Humboldt Parkway for the construction of the expressway, and for violating the Green Amendment to the New York State Constitution (NY Const, art 1, § 19) by continuing to maintain and operate the expressway. We further conclude that factual issues preclude a summary determination of the parties rights' to that extent at this early juncture (see Kerri W.S., 202 AD3d at 154-155). Accordingly, the order and judgment should be modified by denying the motion of the State defendants and reinstating the amended complaint against those defendants.

All concur except Lindley, J.P., who dissents in part and votes to modify in accordance with the following memorandum: I respectfully dissent in part. Plaintiffs commenced this action asserting two causes of action, the first of which alleges that defendants violated the Green Amendment to the New York State Constitution (NY Const, art I, § 19) by maintaining and operating the Kensington Expressway, also known as State Route 33 (expressway), which runs east to west and connects downtown Buffalo to the airport in Cheektowaga. The second cause of action alleges that defendants violated the public trust doctrine (see generally Friends of Van Cortlandt Park v City of New York, 95 NY2d 623, 630 [2001]) by constructing the expressway over and along Humboldt Parkway, which, according to plaintiffs, constitutes parkland that cannot be used for any non-park purpose without express authorization by the New York State Legislature (see L 1869, ch 165, § 1 [Buffalo Park Act]). In their amended complaint, plaintiffs seek, among other things, a declaratory judgment and an order directing defendants to remove the expressway and restore Humboldt Parkway to its pre-highway condition.

Before answering, defendants New York State Department of Transportation (DOT), Marie Therese Dominguez, in her official capacity as Commissioner of the DOT, Stephanie Winkelhake, P.E., in her official capacity as Chief Engineer of the DOT and the State of New York (collectively, State defendants) moved to dismiss the amended complaint against them pursuant to, inter alia, CPLR 3211 (a) (7) (DOT motion). Defendant City of Buffalo (City) also filed a pre-answer motion to dismiss the amended complaint against it, incorporating the contentions raised by the State defendants (City motion). Supreme Court granted the DOT motion and the City motion. Plaintiffs appeal.

Inasmuch as this is a declaratory judgment action, we must analyze a motion to dismiss pursuant to CPLR 3211 (a) (7) under three steps. Under step one, the question is " 'whether a proper case is presented for invoking the jurisdiction of the court to make a declaratory judgment' " (Matter of Kerri W.S. v Zucker, 202 AD3d 143, 154 [4th Dept 2021], lv dismissed 38 NY3d 1028 [2022], lv denied 42 NY3d 905 [2024]). If so, the inquiry moves to [*5]step two where the question is "whether factual issues preclude a summary determination of the parties' rights" (id.). If there are no questions of fact and the only issues presented are questions of law or statutory interpretation, then at step three "the court effectively 'treat[s]' the motion to dismiss for failure to state a cause of action 'as a motion for a declaration' and proceeds accordingly" (id. at 155).

I agree with the majority that the court properly granted the City motion with respect to the first cause of action, for violations of the Green Amendment, but erred in granting the DOT motion to that extent. I would therefore modify the order and judgment accordingly.

I further agree with the majority that the court properly granted the City motion with respect to the second cause of action, for violation of the public trust doctrine. Unlike the majority, however, I believe that the court should have denied the DOT motion with respect to the second cause of action and issued a declaration that the State defendants have not violated the public trust doctrine by constructing and maintaining the expressway along Humboldt Parkway. I would therefore further modify the order and judgment accordingly.

"Under the public trust doctrine, dedicated parkland cannot be converted to a non[-]park purpose for an extended period of time absent the approval of the State Legislature" (Union Sq. Park Community Coalition, Inc. v New York City Dept. of Parks & Recreation, 22 NY3d 648, 654 [2014]; see Matter of Avella v City of New York, 29 NY3d 425, 431 [2017]). Use of dedicated parkland " 'for other than park purposes, either for a period of years or permanently, requires the direct and specific approval of the State Legislature, plainly conferred' " (Friends of Van Cortlandt Park, 95 NY2d at 632; see generally Capruso v Village of Kings Point, 23 NY3d 631, 639 [2014]).

Here, while plaintiffs concede that Humboldt Parkway is not a park, they contend that it is a "park approach" and thereby constitutes dedicated "parkland" subject to protection under the public trust doctrine, which plaintiffs allege that the State defendants violated by constructing and maintaining a highway over and along Humboldt Parkway. Plaintiffs further contend that the New York State Legislature never explicitly alienated Humboldt Parkway, resulting in a violation of the public trust doctrine by the State defendants. The majority agrees with plaintiffs on both points and concludes that the amended complaint states a valid cause of action under the public trust doctrine against the State defendants. I respectfully disagree.

Applying the three-step analysis for motions to dismiss set forth in Kerri W.S. (202 AD3d at 153-156), I agree with the majority that at step one plaintiffs' allegations demonstrate the existence of a bona fide justiciable controversy against the State defendants with respect to the second cause of action. In my view, however, a step two analysis demonstrates that there are no questions of fact and, instead, the only issue presented is a question of statutory interpretation, i.e., whether the language used by the legislature in Highway Law § 349-e constituted an alienation of Humboldt Parkway for non-park uses, i.e., the construction of the expressway. In other words, even if it were to be assumed that Humboldt Parkway had been dedicated as parkland, if the language used in Highway Law § 349-e constitutes an alienation by the legislature of Humboldt Parkway for non-park purposes, then the public trust doctrine was not violated as a matter of law. In my view, the analysis therefore advances to step three. At step three, I agree with the State defendants on the merits that Highway Law § 349-e constituted an alienation by the legislature of Humboldt Parkway for non-park uses and, as noted, I would issue a declaration in their favor with respect to the second cause of action.

In my view, the legislature clearly and unambiguously approved a non-park use of Humboldt Parkway in 1944 when it enacted Highway Law § 349-e, which authorized the construction of an arterial highway "along the southerly side of Delaware Park to and along Humboldt [P]arkway, and continuing to East Delavan [A]venue" (emphasis added). I see no other reasonable way to read the statute other than as express permission by the legislature to construct a highway where Humboldt Parkway used to be located.

Plaintiffs argue that Highway Law § 349-e does not defeat their cause of action under the public trust doctrine because the statute does not explicitly state that the legislature is alienating Humboldt Parkway. Plaintiffs, however, cite no authority for the proposition that the legislature [*6]must use certain words to alienate parkland, and none could be found. Because the use of land as a highway is necessarily "destructive of, and inconsistent with, park use" (Chateau Rive Corp. v Enclave Dev. Assoc., 22 AD3d 447, 449 [2d Dept 2005]; see Matter of Cent. Parkway, 140 Misc 727, 729 [Sup Ct, Schenectady County 1931]), it was unnecessary for the legislature to explicitly state that it was alienating parkland when it approved the construction of a highway along Humboldt Parkway. Alienation is self-evident.

The majority identifies certain language that the legislature used in Highway Law § 349-e to alienate parks in Albany and Syracuse and contrasts that with the language used in the same statute with respect to Humboldt Parkway. Specifically, regarding the City of Albany, the statute stated that "[p]ortions of this arterial route within and in the vicinity of Washington park may be built as a depressed highway as determined by the commissioner" (id. [emphasis added]). Similarly, in the provision relating to the City of Syracuse, the legislature authorized construction of an arterial route "within and in the vicinity of Clinton square [a public park in downtown Syracuse] . . . as a depressed highway" (id. [emphasis added]). According to the majority, "along" is not synonymous with "within," and the legislature's use of "along" reflects an intent to authorize construction of a highway adjacent to the parkway. I come to a different conclusion.

To begin with, plaintiffs do not argue that there is a distinction in Highway Law § 349-e between "along" and "within," nor do they argue that the legislature intended to authorize construction of a highway adjacent to Humboldt Parkway as opposed to a highway following the path thereof. Instead, plaintiffs argue that the legislature, in enacting section 349-e, did not "go beyond merely declaring Humboldt Parkway as a candidate for state financing for improvements" and that the statute does not explicitly or plainly alienate the park approach for non-park purposes. As I understand it, plaintiffs' argument assumes that the expressway was built "along" the route of Humboldt Parkway, and I agree with plaintiffs on that point. The majority, on the other hand, suggests that the expressway was not built "along" Humboldt Parkway and that the State defendants would not have violated the public trust doctrine if it had constructed the expressway a bit to the left or right of its existing path. Again, I do not see plaintiffs making that argument.

In any event, Highway Law § 349-e is replete with language authorizing construction of highways "along" various roads, streets, and boulevards. In those instances, I do not think the statute can reasonably be interpreted as authorizing the construction of highways adjacent to all of those roads, streets, and boulevards instead of over the top of them. The fact that the statute in other places authorizes highways "within" certain parks makes sense given that a highway cannot follow the path of an entire park, whereas it can follow the path of a parkway. Plaintiffs correctly concede that Humboldt Parkway is not a park.

As noted, Highway Law § 349-e authorized the construction of a highway "along Humboldt parkway, and continuing to East Delavan [A]venue." That describes precisely the section of Humboldt Parkway through which the expressway now runs. It necessarily follows that the legislature approved the construction of the expressway through Humboldt Parkway. Thus, regardless of how the legislature alienated parks in other cities, it specifically authorized the construction of a highway "along Humboldt parkway" (id.), which is all that is required to defeat plaintiffs' cause of action under the public trust doctrine. That is to say, the replacement of Humboldt Parkway with a highway does not lack the "sanction of the legislature" (Brooklyn Park Commrs. v Armstrong, 45 NY 234, 243 [1871]). Contrary to plaintiffs' contention, the legislature plainly conferred its approval for a highway along Humboldt Parkway with "direct and specific" legislation, i.e., Highway Law § 349-e (Friends of Van Cortlandt Park, 95 NY2d at 632), thus defeating the cause of action based on an alleged violation of the public trust doctrine.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court