Supreme Court, Rockland County

Decided on April 16, 2026

Index No. 033741/2022

Rachel E. Tanguay, J.

[*1]

Relevant Procedural History

This action was originally filed as a combined Article 78 proceeding and action seeking a declaratory judgment. While the action was pending, the Town Board of the Town of Ramapo (Board) rescinded its resolutions for which the Petitioners were seeking relief via Article 78. [*2]Thus, that part of the action was rendered moot and the Article 78 Petition was denied.^FN1 The Court previously denied summary judgment motions related to the action for a declaratory judgment, having held that there are "[g]enuine issues of material fact exist as to whether the Town accepted the irrevocable dedication of the Property as parkland and whether the Amended Agreement substituting the words `for park purposes' with `for municipal purposes' negated the alleged irrevocable dedication . . . ." NYSCEF Doc. 158 at 5 (brackets and ellipses added). Essentially, Plaintiffs' first cause of action in its Petition/Complaint survived, with remaining causes of action either being withdrawn or dismissed. In its Decision and Order denying summary judgment, the Court scheduled a conference for June 6, 2024.

The day before that conference, Plaintiffs' counsel filed a motion to be relieved, to reargue the decision and order denying summary judgment and seeking an order removing Donald and Barbara Bermack from the caption. The Court convened a conference on June 14, 2024 and set a briefing schedule on the newly filed motion, as well as the subsequently filed cross-motion seeking reargument of the decision and order denying summary judgment. On December 3, 2024, the Court denied the motions to reargue and relived Bruce Levine, Esq. from representing the Plaintiffs. NYSCEF Doc. 179. The Court stayed the matter for 30 days and set the matter down for a conference on February 13, 2025 with the new Jurist. Id. No one appeared at the conference and it was adjourned to February 24, 2025, unless a Note of Issue was filed. Incoming counsel for Plaintiffs filed Note of Issue on February 21, 2025, and the Court scheduled a bench trial for June 16, 2025.^FN2

Unfortunately, the Court was forced to adjourn the trial, as this Jurist also presides over criminal matters in the Integrated Domestic Violence Court and had to preside over a time-sensitive criminal trial the week of June 16, 2025. The matter was scheduled for a scheduling conference first in July and then rescheduled to August of 2025. On August 21, 2025, the Court convened a conference with the attorneys and discussed possible resolution. Both sides agreed that they would likely be able to stipulate to the documentary evidence that would be adduced at a trial and that no witness testimony was needed. Thus, the Court adjourned the case to December 10, 2025 for a pre-trial conference to give the parties time to ascertain whether they would be able to stipulate to the evidence to be considered by the Court or whether a limited hearing was required. When the matter returned to Court on December 10, 2025, the parties had not yet been able to generate a pre-trial order relating to the evidence, so the Court set the matter down for a hearing on March 11, 2026 and informed the parties that they either needed to submit their trial notebooks or a pre-trial proposed order of stipulated exhibits by January 23, 2026.

The parties did not file either by January 23, 2026, but on January 28, 2026, Plaintiffs' counsel asked to adjourn a pending motion relating to a request for a subpoena because the parties were still attempting to stipulate to the evidence to be presented. NYSCEF Doc. 200. The Court set a deadline of February 13, 2026 for receipt of the pre-trial order, and they [*3]successfully and timely did so. NYSCEF Doc. 204. They also stipulated to 37 exhibits coming into evidence and to be made a part of this trial record. Thus, in rendering this decision "after trial", the Court has considered NYSCEF Docs. 204, 206-243. The Court permitted both sides to submit Memoranda of Law relating to the stipulated facts and evidence, and both parties submitted same on March 4, 2026 with them each submitting reply memoranda on March 18, 2026. NYSCEF Docs. 244-248.

Stipulated Facts

The parties stipulated to the following facts in NYSCEF Doc 204:

1. The Town created a Development Plan in 1966 stating, inter alia, under the heading: "Planning Principles and Factors Considered for Residential Development":

To preserve natural features and open space and to provide for more flexible and diversified residential development, broader use should be made of the land use control device of "averaging" or "clustering" as provided for in Section 281 of the Town Law, using the rural, semi-rural and suburban densities provided for in the Plan as the basis for such development. (Exhibit 1—NYSCEF Doc. 207 at page 21).

2. Section 281 of the Town Law, in effect at all relevant times herein provided in relevant part:

(d) In the event that the application of this procedure results in a plat showing lands available for park, recreation, open space, or other municipal purposes directly related to the plat, then the planning board as a condition of plat approval may establish such conditions on the ownership, use, and maintenance of such lands as it deem necessary to assure the preservation of such lands for their intended purposes. The town board may require that such conditions shall be approved by the town board before the plat may be approved for filing. (Exhibit 2—NYSCEF Doc 208).

3. In August 1967, the Town passed the Ramapo Average Density Law for the implementation of Section 281 of the Town Law. The Ramapo Average Density Law tracked the language of § 281 of the Town Law stating:

(6) Another condition required by Section 281 is that if the application of this procedure results in a plat showing land available for park, recreation, open space or other municipal purposes, directly related to the plat, then conditions as to ownership, use and maintenance of such lands as are necessary to assure the preservation of such lands for their intended purposes shall be set forth. (Exhibit 3—NYSCEF Doc. 209).

4. In 1967, the developers of the Fairway Park Subdivision ("FP Developers") started the process of seeking subdivision approval.

5. On March 29, 1968, the Ramapo Town Clerk wrote the Ramapo Town Attorney stating:

As you will recall after the zone change for Fairway Park, Inc. was denied by the Town Board following the public hearing held on March 25, 1968, Mr. George Faist requested that an informal hearing be held on the use of average density for this property. Councilman Siner offered the following resolution which was seconded by Councilman Levy and unanimously adopted by those present, Councilman Charles being absent: RESOLUTION NO. 68-242 RESOLVED that authorization be granted for the matter of [*4]average density for the subdivision of Fairway Park, Inc. to be advertised for the agenda of the Town Board meeting of May 13, 1968 which will convene at 8:00 P.M., said property located on the north side of Brick Church Road and consisting of 66 lots from approximately 72 acres with 22 acres to be dedicated to the Town for a Park. (Exhibit 4—NYSCEF Doc. 210).

6. On May 1, 1968, the Town Board issued a public notice for the Town Board meeting to approve use of average density for the Fairway Park Subdivision. The Notice provided, inter alia:

PLEASE TAKE NOTICE that an application to modify applicable provisions of the Zoning Ordinance (Average Density) pursuant to paragraph 281 of the Town Law of the State of New York, has been presented to the Town Board of the Town of Ramapo, Rockland County, New York, and ... the Town Board will . . . have this matter on its agenda for its discussion in order to determine whether or not to authorize the Planning Board to modify the provisions of the Zoning Ordinance of the Town of Ramapo. The property involved is a subdivision known as "Fairway Park" consisting of 72 acres to be divided into 66 lots with 22 acres to be dedicated to the Town of Ramapo for park use. Said property is located on the north side of Brick Church Road. . . . (Exhibit 5—NYSCEF Doc. 211).

7. On May 7, 1968, the Town Engineer wrote the Planning Board Chairman indicating his opinion that the proposed plat could benefit the Town's Sewer program. On the same day, the Planning Board recommended the Sketch Plat be submitted to the Town Board with a recommendation that "permission for the use of average density be granted for an area of 22.5 acres, on the basis that it would provide an attractive and useful design and, further, that it would conform with the master plan as well as tie together three Town or utility areas." (Exhibit 6—NYSCEF Doc. 212).

8. On May 13, 1968, the Town Board met and discussed the Fairway Park matter. The minutes of that meeting read: "Advertised for the agenda of this meeting was the matter of average density for the Fairway Park Subdivision located on the north side of Brick Church Road containing approximately 66 lots from 71 acres with 22 acres to be dedicated to the Town for a park." (Exhibit 7—NYSCEF Doc. 213).

9. On May 16, 1968, the Superintendent of Recreation and Parks wrote the Town Supervisor indicating, inter alia:

I would like to go on record at this time, in favor of granting average density to this subdivision. I likewise express the views of the Parks and Recreation Advisory Board, who on May 6th unanimously recommended to the Planning Board, approval of average density. The site in question as you know, is an existing golf course. Despite the opinions of the residents in this area, I feel that this site would be an asset to our park acquisition program. (Exhibit 8—NYSCEF Doc. 214).

10. On May 27, 1968, the Town Board adopted Resolution No. 68-372 that "RESOLVED that the Planning Board of the Town of Ramapo be given permission to use Average Density in the subdivision entitled Fairway Park with 22.5 acres to be dedicated to the Town of Ramapo." The minutes note the agenda item as "[a]dvertised." (Exhibit 9—NYSCEF Doc. 215).

11. The Planning Board's resolution adopted on June 4, 1968, granting preliminary approval to the entire Fairway Park subdivision was made subject to a condition stating, "A specification that the park area be designated on the map as 'For General Municipal Purposes.'" (Exhibit 10—NYSCEF Doc. 216).

12. The Planning Board's resolution, adopted on June 6, 1968, granting final approval to Section 1 of the subdivision, imposes conditions, in addition to the standard conditions, including:

1. An agreement concerning providing of a sewer easement on Lot 41C3 as described in the Minutes of this date;

2. A deed, or a deed in escrow, for lands to be dedicated to the Town, marked "FOR MUNICIPAL PURPOSES;" (emphasis in original).

3. Blacktop sidewalks on Spring Rock Road, to Town specifications, and concrete sidewalks on Brick Church Road, to Town specifications, excepting Lot 41C3, and subject to a further note indicating that Site Plan approval must be obtained for any construction on that lot. Sidewalks on Brick Church Road to be places (sic) inside the three line;

4. 30 foot pavement in cul-de-sac may be reduced to 20 feet, with the approval of the highway Superintendent and provided one-way traffic is assured;

5. an agreement substantially in accordance with the letter from George Faist - dated June 6, 1968 and referred to in the minutes of this date - on file in the office of the Planning Board. Such agreement, Re: SEWERS,to provide for a six month bond in the amount of $12,500.00 from December 1, 1968 if installation is not complete. (Exhibit 11—NYSCEF Doc. 217).

13. A document entitled "CHECKLIST" "FINAL SUBDIVISIONAPPROVAL" refers to "Instruments Necessary for Public Improvements" and references the following: "Streets": "Spring Rock Place" and "Zavatone Court"; "Road Widening": "Brick Church Road;" "On Site Drainage Easements, etc.;" "Sewer Lines (Easements); and "Reserved Lands": "Park Property." (Exhibit 12—NYSCEF Doc. 218).

14. A document containing an extract from the minutes of the June 6, 1968 meeting of the Planning Board states that the approved subdivision included the construction of sewer lines and that the Developer was required to provide a performance bond with respect to these sewer lines. The document refers to the Developer's "irrevocable dedication" of these improvements to be constructed as set forth on the final approved map. (Exhibit 13—NYSCEF Doc. 219).

15. Irving Maidman (the "Owner"), Fairway Park, Inc. (the "Developer") and the Town of Ramapo (the "Town") entered into an Agreement dated June 24, 1968 and recorded in the County Clerk's office in Liber 845, Page 936 (the "Offer of Dedication Agreement") dated June 24, 1968, in which the Developer irrevocably offered to dedicate improvements and land to the Town, including dedication of the Property "for park purposes." This Offer of Dedication Agreement states that it is merely an "offer of dedication" and also states in relevant part:

1. The Developer herewith delivers to the Town of Ramapo deeds of conveyance and easement agreements made by Irving Maidman, as Owner for the premises described in Schedules "A", "B", "C", "D", "E" and "F" attached hereto, said delivery being a formal offer of dedication to the Town of Ramapo to be held by the Town until the acceptance or rejection of such offer of dedication by the Town." (Exhibit 14—NYSCEF Doc. 220).

16. On June 24, 1968, the Town Board met and adopted resolutions to hold a public hearing on the petition of the Owner for the extension of the Ramapo Consolidated Water Supply District No. 1 to include Fairway Park and to approve bonds with the Developer to guarantee certain road and dry sewer improvements in the Fairway Park subdivision. (Exhibit 15—NYSCEF Doc. 221).

17. Three months after the June 24, 1968, Offer of Dedication Agreement, the Developer and the Town modified it by deleting the offer of dedication "for park purposes" and substituting instead the words "for municipal purposes." This Agreement recorded in the County Clerk's Office in Liber 855, Page 719 (the "Modification Agreement"), dated October 1, 1968, states in relevant part:

1. The words, "for park purposes" appearing in the Preamble of the Agreement dated June 24, 1968 and in the Schedules thereto attached are hereby deleted and the words, "for municipal purposes" are hereby substituted in lieu thereof with the same force and effect as if originally in the said Agreement and Schedules set forth, the intent hereof being to modify the said Agreement and the Schedules thereto attached and all other documents referring thereto so as to indicate an offer dedication to the Town of 25.54 acres to be used by the Town for municipal purposes.

The words, "municipal purposes" shall in no event be construed so as to allow the use of 25.54 acres for any residential use of any kind, nature, character or description. (Exhibit 16—NYSCEF Doc. 222).

18. This Modification Agreement is referenced in a subsequent agreement between the Developer and the Town, dated April 24, 1970, recorded in the County Clerk's office in Liber 875, Page 875, which states that the Developer "agreed with the Town of Ramapo that the use of the premises described in the Agreement dated July 16, 1968 be changed from 'park purposes' to 'municipal purposes.'" (Exhibit 17—NYSCEF Doc. 223).

19. The Property was dedicated and conveyed to the Town by the Developer by deed, dated January 27, 1972 and filed in the County Clerk's office in Liber 917, Page 163. The Property is described in PARCEL NO. 1 of the Deed and following the legal description are the words:

The premises herein described is shown on a map entitled "Redivision of Map Entitled — Map of Property to be deeded to the Town of Ramapo by Fairway Park, Inc." . . . for dedication to the Town of Ramapo for municipal purposes. (Exhibit 18—NYSCEF Doc. 224).

20. Other than the sewer lines, the Property has remained undeveloped. The "Map of Property to be Deeded to the Town of Ramapo by Fairway Park, Inc." does not set forth the term park or parkland. (Exhibit 19—NYSCEF Doc. 225).

21. On January 7, 1969, the Planning Board resolved that approval for a subdivision entitled Fairway Park Section II be granted subject to certain enumerated conditions, including, inter alia, the following:

The Planning Board waives the deposit of money in lieu of land in consideration of the work already done in this subdivision relative to the Town of Ramapo's sewer program and in consideration of the land to be dedicated to Town. (Mr. Klingher and Mr. Greenblatt request that the record indicate that they are in favor of requiring money in [*5]lieu of land.) (Exhibit 20—NYSCEF Doc. 226).

22. On August 19, 1969, the Planning Board granted Fairway Park, Section III final approval with conditions, stating in pertinent part:

4. IN VIEW OF THE IMPROVEMENTS INSTALLED BY THE DEVELOPER FOR THE BENEFIT OF THE TOWN AND IN VIEW OF THE QUALITY OF LAND DONATED BY THE DEVELOPER IN THIS SUBDIVISION FOR RECREATION AND OTHER PURPOSES, THE PLANNING BOARD SPECIFICALLY WAIVES MONEY IN LIEU OF LAND REQUIREMENTS. (Exhibit 21—NYSCEF Doc. 227).

23. On September 4, 1969, the Ramapo Director of Parks and Recreation wrote the Town Supervisor, stating, inter alia:

I inquired of George Faist whether or not we could begin to maintain the 22+ acres which the Town will be receiving from average density. His initial reaction was that this arrangement would be acceptable to him but the Town would not be permitted to use the property unless we exempted that area from taxes. Upon investigation, I found the park area is being taxed at the rate of approximately $8,000. per year. If we were to maintain this property but restrict the public from using it I am afraid the Town would be subjected to some justifiable criticism. On the other hand, Mr. Faist indicated a willingness to permit the Town to maintain the area, improve it and use it, provided he be relieved of his taxes and that we eliminate him from any liability.

***

Until this matter is resolved, I suggest we refrain from any attempt to maintain this site. (Exhibit 22—NYSCEF Doc. 228).

24. A letter from John A. Keough, Administrative Assistant to the Boards and Commissions to the Ramapo Town Board, dated December 18, 1969, states that on December 16, 1969, the Ramapo Planning Board met at a special meeting and reviewed the application of the Developer for a variance of the requirements of section 46-13.1 of the Ramapo Zoning Ordinance for the Fairway Park Section III subdivision. A motion was carried granting the variance. The Planning Board reported this to the Town Board letters dated December 18, 1969 and December 19, 1969, stating:

The Planning Board finds that the proposed subdivision is consistent with the Comprehensive Plan and all subdivision requirements. Further, the Planning Board finds that the construction of this subdivision will have a favorable impact upon the Comprehensive Plan and Capital Budget of the Town of Ramapo in that a recreation area and sewer improvements benefiting the entire area are being obtained in conjunction with this subdivision. (Exhibit 23, together with the corresponding minutes of the Planning Board—NYSCEF Doc. 229).

25. On April 24, 1970, the FP Developer provided the Town with Sewer Easement Agreements, including one which traversed the subject property. The developer's cover letter provided:

I hand you herewith Sewer Easement Agreements and an Easement covering the park lands in the Fairway Park development. (Exhibit 24, together with the [*6]easement—NYSCEF Doc. 230).

On April 24, 1970, the Town Board adopted Resolution 70-264 which provided:

RESOLVED that the easement dated April 24, 1970 between Fairway Park, Inc. and the Town of Ramapo relating to the parkland in the subdivision entitled Fairway Park, Section I, be hereby accepted, subject to recording. (Exhibit 25—NYSCEF Doc. 231).

26. The Town Board placed the acceptance of the dedication of the subject land on the agenda for June 28, 1972, but the matter was adjourned with a minute entry stating:

ACCEPTANCE OF DEEDS- FAIRWAY PARK- PARKLAND & STREETS

Because of some legal problems having arisen, the Town Attorney Arnold Becker asked the Town Board to withdraw this item from the agenda and place it on the agenda of the next Town Board meeting. Request granted. (Exhibit 26—NYSCEF Doc. 232).

27. The Deeds were accepted by Resolution No. 72-427 on September 27, 1972. The Resolution provided:

RESOLVED by the Town Board of the Town of Ramapo that the deed dated January 27th, 1972, between Fairway Park, Inc. and the Town of Ramapo for the streets known as Spring Rock Place, Zavatone Court, the widening of Brick Church Road, Park Land and Sand Pit Lot and Park on the corner of Brick Church Road and Hempstead Road. together with separate drainage easements and sewer easements, in the subdivision entitled Fairway Park, Section I, be hereby accepted subject to recording. (Exhibit 27—NYSCEF Doc. 233).

28. On November 13, 1972, the Director of Public Works, Town Superintendent of Highways, Building and Zoning Inspector, Town Attorney and Administrative Assistant to the Planning Board requested a release of the FP Developer's bond. That request included the statement:

Deeds and Easements Recorded: 5/11/70 - Easement relating to Park Land recorded. 9/27/72 - Deed accepted for Spring Rock Pl., Zavatone Ct., widening of Brick Church Rd., Park Land, Sand Pit Lot &Pa: on corner Brick church Rd.& Hempstead Rd., & drainage & sewer easement

Action being requested: RELEASE (Exhibit 28—NYSCEF Doc. 234).

29. In an inter-office memorandum from the Town Attorney to the Town Clerk dated July 9, 1973 addressing the Fairway Park property, the Town Attorney stated:

I am enclosing herewith deed covering Spring Rock Place, Zavatone Court, Road widening Brick Church Road, Park Property, Sand Pit Lot, Park on corner of Brick Church Road and Hempstead Road and drainage and sewer easements across lot B-4. Also enclosed is title insurance policy covering same. (Exhibit 29—NYSCEF Doc. 235).

30. The Ramapo Land Use Map of 2003, prepared by the Rockland County Planning Department and based upon the RPS database from Assessor's office, designates the subject property: "Public Park/Open Space." (Exhibit 30—NYSCEF Doc. 236).

31. The Rockland County Sewer District No. 1 map from June 2007 shows the sewer which traverses the Property. (Exhibit 31—NYSCEF Doc. 237).

32. The New Hempstead Land Use Maps of 2008 and 2012, prepared by the Rockland County Planning Department and based upon the RPS database from Assessor's office, [*7]designates the Property: "Local Park/Open Space." (Exhibit 32—NYSCEF Doc. 238).

33. The Ramapo Land Use Maps of 2008 and 2012, prepared by the Rockland County Planning Department, designate the Property: "Local Park/Open Space." (Exhibit 33—NYSCEF Doc. 239).

34. A draft Town of Ramapo" Parks & OpenSpace" Map of 2010 designates the subject property: "Undeveloped park property." (Exhibit 34—NYSCEF Doc. 240).

35. The "Private Recreation" map contained in the Rockland County Comprehensive Plan adopted March 1, 2011 designates the Property: "Parks - Municipal." (Exhibit 35—NYSCEF Doc. 241).

36. The draft Comprehensive Plan of the Village of New Hempstead of 2019 designates the Property: "Existing Parks or OpenSpace." (Exhibit 36—NYSCEF Doc. 242).

37. 'There is a sign on the Property which states: "No Powered Vehicles on Town Parks." (Exhibit 37—NYSCEF Doc. 243).

As evidenced by the agreement of counsel to the facts and documentary evidence offered in this case, the facts are not in dispute. However, the parties differ significantly about what facts are pertinent to the legal issues presented in this case.

The Parties' Arguments

While the parties were able to stipulate to certain facts and all the documentary evidence in the record, they are at odds about what weight, if any, the Court should give to that evidence. They cannot even agree on the scope of the legal issues presented.

Plaintiffs contend that:

the issue of this case has always been whether Ramapo can declare the Property `surplus' and sell it without constraints. However, since the outset of this case, that issue has been more narrowly framed as whether the Property is `parkland.' While Plaintiffs maintain that the Property fits within the narrow definition of "parkland," Plaintiffs further maintain that in determining whether Ramapo can declare the Property "surplus" and sell it without the constraints of the Public Trust Doctrine, the Court need not be limited by whether the Property fits the definition of parkland.

NYSCEF Doc. 246 at 5-6. Specifically, Plaintiffs argue that even if the property is adjudicated to be "municipal" as opposed to more narrow definition of "parkland" that the Town is still not at liberty to surplus the land at its own will. Plaintiffs contend the Town received ownership of the Property because of the provisions set forth in Town Law § 281 and the "Ramapo Average Density Law For the Implementation of Section 281 of the Town Law of New York" (Average Density Law), and that those laws' purposes were to allow for development of land in sub-urban areas while allowing for creation and use of streets, utilities and the preservation of open spaces. The approval of the Fairway Park Subdivision was rooted in Town Law § 281 and the Average Density Law, Plaintiffs argue. This means that the Property was conveyed directly to the Town by the developers and was to be for use as a "park, recreation, open space or other municipal purposes, directly related to the plat". See Town Law § 281 and the Average Density Law.

Conversely, Defendants argue that "the sole issue before this Honorable Court is whether the Property is dedicated parkland." NYSCEF Doc. 248 at 5. They contend that Plaintiffs have impermissibly expanded the scope of the legal issues presented and that the Court should only consider whether the Plaintiffs are entitled the narrower relief they sought in their Petition/Complaint:

(i) A declaratory judgement that Fairway Park is parkland pursuant to state law, since the land is actually, and legally, municipally owned parkland and must remain so in perpetuity unless the New York State Legislature permits other uses by an enactment of a specific state law declaring the land no longer parkland.

NYSCEF Doc. 1 at 61—the Wherefore Clause (emphasis added). In the body of the Petition/Complaint, Plaintiffs' first cause of action entitled "Fairway Park is dedicated parkland", the Plaintiffs request that "the Court issue a finding that the Town of Ramapo cannot surplus the land that has been known for decades as Fairway Park or Fairway Oval Park and a further finding that the land constitutes parkland." NYSCEF Doc. 1 at 38, ¶ 120. Defendants contend that the Plaintiffs are bound by the narrower request made for declaratory judgment relief that the Property be declared "parkland", as opposed to the broader finding that the Town cannot surplus the land even if it municipal, and that to permit this expanded scope would prejudice them.

On the issue of whether the Property is "parkland", Defendants argue that the modification to the Offer of Dedication on October 1, 1968 shows a clear intent to modify the dedication of the developer from "parkland" to land "for municipal use", and that the deed filed in 1972 is clear and unambiguous in demonstrating the Property was dedicated to the Town and conveyed for "municipal purposes", not for purposes of establishing parkland. Defendants maintain that given this unambiguous language in both the modification to the Offer of Dedication and the deed that the land was dedicated to the Town for "municipal purposes", they must prevail and the Court is foreclosed from declaring the Property to be parkland. Defendants aver that the extrinsic evidence made part of this record is insufficient to overcome the plain language of the Offer of Dedication and the deed. They also claim that the record is devoid of any evidence that the Town accepted the Offer of Dedication for park purposes, and that absent unequivocal evidence that the Town, the owner of the Property, intended to abandon the Property to the use of the public, that the Plaintiffs' burden of proof relating to whether the Property was dedicated as parkland for public use cannot be met.

Plaintiffs disagree and contend that the original Offer of Dedication was for park use, and while that was amended to "municipal use", that this is still means use by the public; municipal spaces can be used for parks and for other public functions, such as utilities. Plaintiffs aver that ever if the Court found that the Property was not dedicated for "park purposes" but for "municipal use", that there is overwhelming extrinsic evidence that there was an implied dedication for park purposes. Plaintiffs counter Defendants' arguments that the Properly may be an open space but it is not a park by pointing out that the record is riddled with resolutions and communications between government officials between 1968 and 1972 about Property being a "park".^FN3 Also, that for more than five decades, the area has remained undeveloped, is listed as a [*8]"park" in many official county maps over the last 20 years and even has a sign posted reading, "No Powered Vehicles on Town Parks."

If the Court is not convinced that the Property should be declared as park land, Plaintiffs argue that the public trust doctrine still protects the Property from being alienated or surplused by the Town absent approval from the Legislature. They contend that municipal land is public land, and if that land was dedicated for public use, the public trust doctrine applies. Plaintiffs also claim that the handwritten notation in the deed on page two where the word "park" was written in close proximity to the language in the deed that reads "for dedication to the Town of Ramapo for municipal purposes" creates an ambiguity about whether the land was deeded for park purposes or municipal purposes, so the review of extrinsic evidence about the intent of the dedication and use of the Property become essential for the Court to make an appropriate determination.

In response, Defendants maintain that arguments about the application of the public trust doctrine are being impermissibly presented to the Court at this late stage of the proceedings. Defendants maintain that the Plaintiffs pled factual allegations relating to the original dedication of the Property as parkland and claims that this original dedication was never revoked and remains valid, despite the modification of the offer of dedication. They claim that no where in the pleadings are there claims made that the Property cannot be surplused by the Town because of its dedication for "municipal use", and that they are prejudiced in having this claim to be raised for the first time in closing arguments. Even if the Court were to consider that argument proffered by Plaintiffs, Defendant maintain that they are incorrect, and that there a multitude of scenarios that would permit the Town could develop or even convey the Property consistent with its use as either a park or some other public use where legislative approval is not required. Thus, it would be improper for this Court to make any declaratory judgment that the Town cannot surplus the Property, as the public trust doctrine does not place a blanket restriction upon them.

Legal Analysis

At the heart of this case is Plaintiffs' desire to ensure that the Property remains an undeveloped, open space for use by the public, and Defendants' desire to be able to develop, encumber or sell the Property without having to seek approval from another body. Plaintiffs are all residents in homes abutting or sitting very near the Property and seek relief from this Court that would ensure them that this undeveloped open space will not be sold without scrutiny from a legislative body. The Town and the Board oppose those restrictions and contend that the Plaintiffs' action is self-serving in that they are trying to maintain the open spaces abutting their properties for their own direct benefit and private use, as opposed to for public use and enjoyment.

In 1968, property developers sought to create a subdivision within the Town. The Board passed a resolution that the "matter of average density for the subdivision of Fairway Park" be advertised to the public and placed on the agenda for an upcoming Board meeting. On May 1, 1968, the Board issued a public notice advising this meeting so the public could be heard concerning an application to modify zoning provisions pursuant to Town Law § 281 to modify the Zoning Ordinance of the Town. Specifically, the notice identified "Fairway Park" and described it as "consisting of 72 acres to be divided into 66 lots with 22 acres to be dedicated to the Town of Ramapo for park use." NYSCEF Doc. 211 (emphasis added). Following that meeting and public commentary, the Board adopted Resolution 68-372 which granted the Planning Board permission to use Average Density in Fairway Park with 22.5 acres to be [*9]dedicated to the Town.

A few days later, on May 7, 1968, the Town Engineer informed the Planning Board Chairman that the proposed plat would be an excellent place to enhance the Town's sewer functioning. Later that month, the Board adopted a resolution that gave permission to use average density in the Fairway Park Subdivision with 22.5 acres being dedicated to the Town. In June 1968, the Planning Board's resolution granting preliminary approval for the Subdivision subject to the following condition, "A specification that the park area be designated on the map as `For General Municipal Purposes'". NYSCEF Doc. 215 (emphasis added).

On June 24, 1968, an Offer of Dedication Agreement signed by the developer and the Town contained an irrevocable offer to convey a parcel of land consisting of 25.54 access "to be used for park purposes" to the Town. That same day, the Board met and adopted resolutions to hold a public hearing relating to bond approval for road and sewer improvements in the Fairway Park Subdivision. Subsequently, the original Offer of Dedication Agreement was modified a few months later on October 1, 1968 to delete "for park purposes" and to substitute the words "for municipal purposes" which "shall in no event be construed so as to allow the use of the 25.54 acres for any residential use of any kind, nature, character or description." NYSCEF Doc. 222 at 2.

Ultimately, a deed evidencing the conveyance of the Property from the developer to the Town on January 27, 1972 was filed with the Rockland County Clerk's Office with the following typewritten language: "The premises herein described . . . to be deeded to the Town of Rampo by Fairway Park . . . for dedication to the Town of Ramapo for municipal purposes." NYSCEF Doc. 224 (ellipses added). However, and in a handwritten notation on page 2 in reference to "Parcel No. 1" is the work "Park" in the recorded document. Other than the sewer lines that were placed under the Property, the Property has remained undeveloped, and multiple official maps from 2003 to 2019 have identified the Property using the word "park".

With respect to the scope of the legal issues that this Court is to determine, solely whether the Property is parkland, as defined by Defendants, or whether the Property is either parkland or lands for municipal use that still are governed by the public trust doctrine, the Court is constrained to consider only relief that was pled. Plaintiffs' Petition/Complaint seeks a "declaratory judgement that Fairway Park is parkland pursuant to state law." NYSCEF Doc. 1. In fact, the First Cause of Action is entitled "Fairway Park is dedicated parkland". Id. Nowhere in the pleadings do Plaintiffs allege that even if the land was dedicated for municipal purposes only that the Town would be precluded from surplusing it, relying on the public trust doctrine. Instead, the pleading alleges that the original park land dedication is controlling, or in the alternative, an implied dedication of the Property as parkland renders it as such.

At no point did Plaintiffs seek to amend their pleadings to add this new claim or cause of action. "[L]eave to amend a pleading may be granted at any time, including during trial, absent prejudice or surprise to the opposing party, unless the proposed amendment is palpably insufficient or patently devoid of merit." Galarraga v. City of New York, 54 AD3d 308, 310 (2d Dept. 2008)(brackets added). It is unclear why Plaintiffs did not seek permission to amend their Complaint to add this claim,^FN4 but the Court must agree with Defendants that raising this new [*10]theory and claim in post-trial briefs prejudices them. Arguably, Defendants learned about this argument for the first time in Plaintiffs' Trial Memorandum of Law, filed on March 4, 2026. Defendants were permitted to submit a reply memorandum by March 18, 2026, which gave them only two weeks to research and attempt to counter those arguments. Moreover, the Defendants had no ability to be heard about whether the Court should consider this addition claim before the record was closed. Accordingly, the Court will not consider relief broader than what was requested in the original pleading, whether the Court should issue a declaratory judgment declaring the Property to be parkland.

Turning next to Defendants' contention that the plain language of the modified Offer of Dedication and deed unequivocably establish that the Property is not parkland, the Court already ruled that the documentary evidence presented to the Court upon the filing of the summary judgment motion, which included both the modified Offer of Dedication and the deed, were insufficient to grant them relief as a matter of law. The Court previously ruled that "a parcel of property may become a park by express provisions in a deed or legislative enactment or by implied use of the parcel as a park." NYSCEF Doc. 158 at 3-4. Ultimately, this Court concluded that "[t]he evidence submitted by the Town fails to establish that the Torn did not unequivocally manifest an intent to dedicate the Property as parkland." Id. at 4 (brackets added). Thus, the Court continues to disagree with Defendants that the second Offer of Dedication and the deed definitively answer the question: is the Property is parkland?

"A parcel of land may become a park either expressly, such as by restrictions in a deed or legislative enactment, or by implication, such as by a continuous use of the parcel as a public park." Levine v. Village of Is. Park Bd. of Zoning Appeals, 95 AD3d 1125, 1127 (2d Dept. 2012)(citations omitted). "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 shows a present, fixed, unequivocal purpose to dedicate. Similarly, the acceptance of the offer by the public, requires the same unequivocal and convincing proof necessary to prove an intent to dedicate." Winston v. Scarsdale, 170 AD2d 672, 673 (2d Dept. 1991)(internal quotation marks and citations omitted). However, if a "landowner's acts are equivocal, or do not clearly and plainly indicate the intention to permanently abandon the property to the use of the public, they are insufficient to establish a case of dedication." Glick, supra at 1180. "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." Id. (citations omitted). "The burden of proof rests on the party asserting that the land has been dedicated for public use." [*11]Angiolillo v. Town of Greenburgh, 290 AD2d 1, 11 (2d Dept. 2001). "Dedicated park areas in New York State are impressed with a public trust, and their use for other than park purposes requires direct and specific approval by the State Legislature." Jones v. Amicone, 27 AD3d 465, 470 (2d Dept. 2006). See also Friends of Van Cortlandt Park v. City of New York, 95 NY2d 623 (2001).

Under the public trust doctrine, a land owner cannot alienate land that has been impliedly dedicated to a public use without obtaining the approval of the legislature. A party seeking to establish such an implied dedication and thereby successfully challenge the alienation of the land must show that (1) the acts and declarations of the land owner indicating the intent to dedicate his 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 v. Harvey, 25 NY3d 1175, 1180 (2015)(internal citations, brackets and quotation marks omitted)(emphases added). See also Angiolillo, supra.

Plaintiffs argue that Defendants have accepted an express dedication of the Property as parkland because the initial Offer of Dedication was never rejected or revoked and the Property was subsequently used as parkland despite the modified Offer of Dedication's language changing the nature of the use to municipal, or in the alternative, that they have created an implied dedication that the Property is parkland. Defendants counter that the express language of the documents, as well as the Town and Board's actions as relates to the Property, support a finding that no dedication, express nor implied, for parkland use was ever accepted or created.

Whether the Property was dedicated as parkland either expressly or by implication requires this Court to examine the record in this case in toto, because either way, the Court must examine the Town and Board's actions after the original and modified Offers of Dedication were made to see whether an express acceptance or acceptance through action occurred.

There are various ways in which acceptance by the public may be established. In addition to acceptance shown by express act, there may be an implied acceptance arising from acts of a municipality or its officers and also from use by the public for the purposes for which the property was dedicated. Acceptance has been found in the actions of a municipality or governmental unit which had been done on behalf of the public in making improvements to and maintaining the particular facility.

Gewirtz v. Long Beach, 69 Misc 2d 763, 771 (Nassau Co. Sup. Ct. 1972), aff'd by, Gewirtz v. Long Beach, 25 AD2d 841 (2d Dept. 1974).

The plain language of the original Order of Dedication as well as the modified Offer of Dedication signed on October 1, 1968 which clearly changes the dedicated use from "park use" to "municipal use"; Defendants maintain that this modification is prima facie evidence that the Property was not intended solely for park use. Plaintiffs maintain that the original Offer of Dedication is controlling and that extrinsic evidence supports the conclusion that the language regarding use was modified only to permit the installation of sewer lines below the Property. They point out that the unadulterated open space that still exists today and that maps throughout Rockland County from 2003 through 2019 refer to the Property as either a "park" and/or "open space", further supporting that this was the intent of the dedication and the way the property has been used since it was dedicated in 1968.

As to the Offers of Dedication in the record, the first offer was not revoked or superseded by the modification offer of dedication. Instead, the modified Offer of Dedication specifically reads:

The words, "for park purposes' appearing in the Preamble of the Agreement dated June 24, 1968 and in the Schedules thereto attached are hereby deleted and the words, "for municipal purposes" are hereby substituted in lieu thereof with the same force and effect as if originally in the said Agreement and Schedules set forth, the intent hereof being to modify the said Agreement and the Schedules thereto attached and other documents referring thereto so as to indicate an offer of dedication to the Town of 25.54 acres to be used by the Town for municipal purposes.

2. The words, "municipal purposes" shall in no event be construed so as to allow the use of the 25.54 acres for any residential use of any kind, nature, character or description.

NYSEF Doc. __. The modification to the Offer of Dedication states clearly that the remaining provisions of the original Offer of Dedication remain in "full force and effect." Id.The modification of the Offer of Dedication is also clear that the Property was not to be used in any residential capacity going forward. Nothing in the record supports that the first Offer of Dedication was revoked or rejected. Instead, the second Offer of Dedication modified the type of use for which the land was being dedicated—from park use to municipal use. Plaintiffs maintain that the Defendants in fact accepted the first Offer of Dedication, and that there are multiple resolutions that were accepted by the Town in the period between 1968 and 1972, when the Property was finally conveyed to the Town, addressing the offer of dedication for "park use".

On June 4, 1968, only 20 days before the original express Offer of Dedication was signed, the Planning Board adopted a resolution that preliminarily approved the Fairway Park Subdivision on the condition that "[a] specification that the park area be designated on the map as "For General Municipal Purposes." NYSCEF Doc. 216 (brackets added)(emphasis added). After the modification to the Offer of Dedication was made, but prior to the signing and recording of the deed conveying the Property to the Town, the Board adopted the following resolution: "RESOLVED that the easement dated April 24, 1970 between Fairway Park, Inc. and the Town of Ramapo relating to the parkland in the subdivision entitled Fairway Park, Section 1, be hereby accepted, subject to recording." NYSCEF Doc. 231 (emphasis added). Plaintiffs argue that the Board's adoption of the resolutions, the signing of the deed conveying the Property to the Town with its handwritten notation of the word "park", coupled with its subsequent actions of identifying the Property as a "park" in multiple maps and communications between government officials, as well as leaving the Property an untouched green open area for more than 50 years constitutes a formal acceptance of the Offer of Dedication. See Town of Lark George v. Landry, 96 AD3d 1220 (3d Dept. 2012)(holding that the adoption of a resolution by a town board accepting an offer to use land a public highway along with actions plowing and grading that land constituted an acceptance of the offer of dedication).

The express Offer of Dedication of the land for public or municipal use is clear from this record. While Plaintiffs argue that the original Offer of Dedication was controlling, the Court disagrees. The resolution of the Town approving the Subdivision on the condition that the "park area" be designated on maps as "for general municipal purposes" was passed weeks before any actual offer of dedication was made. After the initial Offer of Dedication was made, the [*12]documentary evidence is clear that both the developer, who was gifting the Property to the Town, as well as the Town had a clear meeting of the minds that the new purpose of dedication by the developer was for municipal purposes. While Plaintiffs argue that this new designation for the convenience and ability of the Town to install sewer lines, the record does not clearly bear out that this was the case. It is quite possible that in discussions about the installation of sewer lines, the Town could have realized the value of the property as being used for utilities and other public purposes beyond parkland, and that they were looking to avoid the hassle and the constraints that were associated with accepting the dedication of the Property as parkland. See Friends of Van Cortlandt Park v. City of New York, 95 NY2d 623 (2001)(concluding that state legislative approval was required where the City of New York was looking to build a water treatment plant on city park land). However, the actions of the Town and Board subsequent to the offer and acceptance of the dedication of the Property for municipal purposes raises serious questions about whether the Town intended to utilize the Property as parklands, subject to the easements for the sewer installations as Plaintiffs argue.

In deciding whether an implied dedication may exist, the Court is guided by the Second Department's holding in Riverview Partners, L.P. v. City of Peekskill, 273 AD2d 455 (2d Dept. 2000). The Court reversed the trial court's determination that a parcel of land ought not to be declared a public park because "the defendant established an implied dedication by submission of evidence demonstrating that the subject property was purchased in 1929 for park purposes, was named `Fort Hill Park' on various city maps and on a sign at the park entrance, was used by the public as a park since its purchase, and was maintained and improved by the defendant for park and historic purposes." Id. at 455-456. Further, the Court held that "[i]n the absence of a formal dedication of land for public use, an implied dedication may exist when a municipality's acts and declarations manifest a present, fixed, and unequivocal intent to dedicate. Once established, the dedication is irrevo-cable (sic)." Id. On these facts, similar but not identical to the facts of this case, the Court found that there was an implied dedication as a park. Moreover, in Ackerman v. Steisel, 104 AD2d 940, 941 (2d Dept. 1984)(internal quotation marks omitted), the Court concluded, "The purchase of the subject parcel for park purposes and its inclusion in the record map of Cunningham Park manifested unequivocally an intention to dedicate the municipally-owned property to public use as a public park." See also Croton-On-Hudson v. County of Westchester, 38 AD2d 979, 980 (2d Dept. 1972)(holding, "While the deeds into the county are in fee and contain no restriction of the land to park use and while there does not appear to have been a formal dedication of the land to such use, we think the long-continued use of the land for park purposes constitutes a dedication and acceptance by implication"); see also Clover/Allen's Cr. Neighborhood Assn. LLC v. M&F, LLC, 173 AD3d 1828, 1831 (4th Dept. 2019)(reversing dismissal of an actions seeking a declaratory judgment for land to be declared subject to the public trust doctrine, stating "Inasmuch as those instruments provided that the Town Easements were to be used as a pedestrian pathway for public use and required the Town to restore the easement property to a park like condition after construction of the pedestrian pathway, respondents' own documentary evidence creates issues of fact whether there was an express or implied dedication of the Town Easements subject to the public trust doctrine")(internal quotation marks omitted).

Conversely, in Coney Is. Boardwalk Community Gardens v. City of New York, 172 AD3d 1366, (2d Dept. 2019), the Second Department affirmed a trial court's granting of summary judgment in favor the defendants that the property at issue was not parkland via [*13]implied dedication. In so holding, the Court stated that "the defendants submitted evidence showing that the City's actions and declarations did not unequivocally manifest an intent to dedicate Lot 142 as parkland. Their exhibits showed that the City permitted the community garden to exist on a temporary basis as the City moved forward with its plans to develop the parcel. Their exhibits also demonstrated that any management of Lot 142 by the City's Department of Parks and Recreation was understood to be temporary and provisional." Id. at 1368-1369 (emphasis added). Also, in Angiolillo, supra, at 11, the Court reasoned that the property at issue, which had been dedicated as a "parkway" was not parkland by implication where "there is no evidence in the record to support the petitioners' conclusory allegations that the subject property became a park by implication because it has been continuously used for that purpose for more than 50 years. According to the petitioners' liberal definition of a park, the subject property has been used "as an open-space buffer to ease the burden of and compensate the neighborhood for noise and pollution from the parkway." (Emphasis added). Finally, in 61 Crown St., LLC v. City of Kingston Common Council, 206 AD3d 1316, 1319 (3d Dept. 2022), the Appellate Division affirmed the granting of summary judgment in favor of the party disputing that a parcel of land was dedicated by implication as parkland where:

[an] environmental assessment form refers to park of the City parcel as a "small pocket park[.]" [But] this form was created by Kingstonian Development and therefore, contrary to plaintiffs' contention, does not constitute an unmistakable expression of the City's intent to treat the area as such. Neither does the use of the area by a private business for once-a-year holiday events, regardless of whether municipal resources were applied, as these events were temporary and sporadic in nature. Further, the fact that there is a concrete patio, a few movable picnic tables, a planter and some painted hop-scotch boards does not nearly establish the municipality's unmistakable intent to permanently dedicate public land for use as a park. Moreover, the public's use of the area to sit and eat lunch could occur in many parts of the City as it is an activity that can happen in virtually any public space. Finally, even if such use could be relevant to the question of the public's acceptance of the disputed area as a park, such activities have little or no bearing on whether the City permanently dedicated such land for use as a park.

(Brackets and emphasis added).

In reviewing all of the evidence in the record, there are four resolutions that utilize the words "Park Land" to describe the Property. NYSCEF Docs. 210, 211, 231, and 233. Moreover, throughout the correspondence between government officials between 1968 and 1973 relating to the Property and minutes and public notices from various Town meetings, it is referred to as a "park" or "recreation" area a total of nine times.^FN5 The handwritten word "park"^FN6[*14]is written on the deed conveying the Property to the town near the typewritten language that it was for "municipal use". Plaintiffs aver that all of those pieces of evidence and the Town's use of this language, coupled with the use of the terms "park/open space" or "park-municipal" in various official county maps from 2003 through 2019 six times, and the placement of a sign on the Property reading "No Powered Vehicles in Town Park" meet their burden of demonstrating that the Town dedicated the Property for park use. Defendants, however, argue that the Property is not a park. There are no recreational structures on the Property, nor is it used for public 4recreation; instead, the Property is mere "open land" and not a park. It is true that the Court of Appeals explained more than 100 years ago, "A park is a pleasure ground set apart for recreation of the public, to promote its health and enjoyment. It need not and should not be a mere field or open space . . . ." Williams v. Gallatin, 229 NY 248, 253 (1920)(ellipses added). However, the Property was obtained by the Town involving public hearings and resolutions relating to Town Law § 281 and the Average Density Law. "[I]t is beyond dispute that the creation of unused or open space so as to serve recreational, scenic, and public service purposes is a key feature associated with cluster development." Bayswater Realty & Capital Corp. v. Planning Bd. of Lewisboro, 149 AD2d 49, 54 (2d Dept. 1989).

Here, the original development of Fairway Park was as a residential subdivision, with a certain amount of space dedicated and then deeded to the Town for "municipal purposes" so that there would be open space to serve recreational, scenic or other public services. But that still leaves the penultimate question in this case unanswered, are the open lands that the Plaintiffs concede have been undeveloped (except the sewer lines) since 1968 parklands by implication? In Bayswater Realty & Capital Corp. v. Planning Bd. of Lewisboro, 76 NY2d 460 (1990), the Court of Appeals stated that following:

Under the conditions of the approval resolution, petitioner became bound by a declaration of covenants and restrictions to provide for the perpetual reservation of the 60.2 acres of open space including a foot trail system affording access to portions of the open space to town residents. Condition No. 25 of the approval resolution requires that petitioner pay a "recreation fee" in accordance with the Lewisboro Land Development Regulations.

. . . .

None of the recitations or other provisions in the Town Board's final approval resolution contains a finding that the proposed subdivision presents a "proper case" for requiring a park or parks suitably located for playgrounds or other recreational purposes within the town or that the open spaces set aside in the proposal are not of sufficient size or of the character to fulfill such requirement.

. . . .

[T[he Planning Board, in approving a conventional subdivision, may, in a proper case, require that the plat itself show parklands suitable for playground or other recreational use. When, however, a particular subdivision does not have land of sufficient size or of the proper character to be set off and committed for the town's recreation and playground requirements, section 277 (1) provides that the developer may be directed to pay a sum of money in lieu of such commitment.

. . . .

[T]he conditions which the Planning Board is empowered by the Town Board to attach under section 281 (d) relate to the open space inside the subdivision resulting from the exercise of the Planning Board's authority to modify the conventional subdivision plat by reducing the minimum area and other requirements for individual lots. The concern is with assuring that the open lands thus created within the proposed plat through clustering are preserved as such and not built upon and that if any of such lands are available "for park, recreation, open space, or other municipal purposes directly related to the plat" that they be kept open and maintained for such purposes.

. . . .

Not surprisingly, since the focus of section 281 (d) is on the preservation of open lands within the subdivision and not with meeting the present and future requirements of the broader community, the Planning Board is not authorized under section 281 (d) (as contrasted with section 277 [1]) to allow payment of money in lieu of setting aside the open space created by the cluster. Obviously, if it were otherwise and the statute permitted the Planning Board to accept money in return for freeing the open lands for development by waiving any controls or restrictions it might otherwise impose under section 281 (d), the Board could increase the permitted density of the subdivision in contravention of section 281 (b).

Id. at 463-470 (emphases and brackets added)(some internal citations omitted).

The Court of Appeals' analysis in Bayswater, supra, is helpful and relevant to this case, because here, the Town's Planning Board resolved the approval of the Fairway Park subdivision with certain conditions, including that "[t]he Planning Board waives the deposit of money in lieu of land . . . in consideration of the land to be dedicated to Town." NYSCEF Doc. 226 (brackets and ellipses added). Moreover, eight months later, on August 19, 1969, the Planning Board issued its final approval of the conditions and stated referred to the Property as "land donated by the developer in this Subdivision for recreation and other purposes. The Planning Board specifically waives money in lies of land requirements." NYSCEF Doc. 227. One month later, the Town Director of Parks and Recreation wrote to the Town Supervisor and the Property, stating that he "found the park area is being taxed at the rate of approximately $8,000 per year." NYSCEF Doc. 228. More importantly, he wrote, "If we were to maintain this property but restrict the public from using it I am afraid the Town would be subjected to some justifiable criticism. On the other hand, Mr. Faist indicated a willingness to permit the Town to maintain the area, improve it and use it, provided he be relieved of his taxes and that we eliminate him from any liability." Id. (emphases added). Thus, according to reasoning of the Court of Appeals, the Town's resolution of January 7, 1969 of waiving money in lieu of the dedication of land to the Town and the final approval of conditions by the Planning Board on August 19, 2969 are compelling evidence that the Town found conclusively that the Property was suitable for park [*15]and recreation space within a clustered subdivision and that the Property was being conveyed to the Town without a fee charged because it was the Property was intended to be the "preservation of open lands within the subdivision" and not intended to meet "the present and future requirements of the broader community ." Id. at 469 (emphases added). The Town accepted the Property and has not restricted it from public use, even though it may not have promoted it to the public as a park nor has it chosen to build structures or pathways or any other amenities often associated with parks or recreational areas. Nevertheless, after consideration of the evidence in the record in toto as set forth herein, this Court finds and concludes that Plaintiffs have met their burden in demonstrating that the Town has created a dedication of the Property as parkland by implication, and hereby grants the relief sought by Plaintiffs in their Petition/Complaint.

All requests for relief raised at trial, or by motion referred to at trial, which are not explicitly addressed herein are denied.

Now, therefore it is hereby

ORDERED that this Court issues a declaratory judgement that lands owned by the Defendants within the Fairway Park Subdivision are parklands pursuant to state law.

This shall constitute the Decision and Order of this Court.

Dated: April 16, 2026

New City, New York

Hon. Rachel E. Tanguay, J.S.C.