EDPL Not Implicated Absent an “Acquisition”: Municipal Roadway Guardrails Within the Right-of-Way Do Not State a Takings Claim

Case: Draina v Town of Ballston, 2026 NY Slip Op 03863 (App Div 3d Dept June 18, 2026).
Disposition: Order granting motions to dismiss affirmed (CPLR 3211[a][7]).

1. Introduction

The plaintiff, Dolores Draina, owns two parcels near Ballston Lake in the Town of Ballston, Saratoga County, located on opposite sides of Outlet Road. In April 2024, the Town installed guardrails within the Town’s roadway right-of-way to deter shoulder parking near a public fishing pier and parking area. The plaintiff alleged that the guardrails prevented her from freely crossing the road between her parcels and forced her to step over or “jump” the rail while navigating traffic.

After serving a notice of claim and appearing for a General Municipal Law § 50-h hearing, plaintiff sued the Town, town officials, and Saratoga County, asserting an EDPL “illegal taking” and multiple tort and quasi-contract claims (trespass, conversion, negligent misrepresentation, public and private nuisance, unjust enrichment, civil conspiracy, and discrimination). The County’s involvement was effectively negated by plaintiff’s 50-h testimony conceding the County played no role. Supreme Court dismissed under CPLR 3211(a)(7), and the Third Department affirmed.

The appeal thus centered on a recurring boundary question in New York practice: when does a government project that affects an owner’s use, convenience, or access amount to a compensable taking (or trigger EDPL procedures), and when is it merely a non-compensable impact from lawful activity on public property?

2. Summary of the Opinion

The Third Department affirmed dismissal of all claims. The court emphasized:

• EDPL/takings theory: Plaintiff alleged no “acquisition” (no vesting of an interest in her property), and the guardrails were undisputedly within the Town’s right-of-way; interference with her use did not constitute an EDPL acquisition.
• No alternative just-compensation claim pleaded: The court noted plaintiff did not plead a cognizable alternative claim for compensation for an alleged de facto taking where eminent domain was not invoked.
• Trespass & conversion: Trespass fails absent unauthorized entry on plaintiff’s land; conversion fails because it concerns tangible personal property, not real property impacts, and plaintiff alleged no personal property interference.
• Negligent misrepresentation: No false factual statement and no special relationship pleaded.
• Unjust enrichment / “tax refund” theory: To the extent framed as overvaluation or improper taxation, the exclusive remedy is tax certiorari preceded by an RPTL grievance; plaintiff pleaded neither.
• Nuisance: Plaintiff’s appellate argument did not meaningfully challenge the right-of-way basis; the court also found Supreme Court’s explanation adequate under CPLR 2219(a).
• Civil conspiracy: No viable underlying tort (the “taking” theory failed), so conspiracy fails.
• Discrimination: Conclusory allegations without facts showing similarly situated comparators or impermissible classification.

3. Analysis

A. Pleading posture and CPLR 3211 framework

The decision is anchored in the familiar CPLR 3211(a)(7) standard: accept pleaded facts as true and give favorable inferences, but disregard bare legal conclusions. The court framed this standard through: Estate of Middleton v CLR Troy LLC, De La Roca v Schacht, Brown v University of Rochester, Doe v Tobin & Dempf, LLP, and Cagino v Levine.

Practically, the court used this framework to separate (i) noncontroversial, documentary/undisputed spatial facts (the guardrails were wholly within the right-of-way; no encroachment) from (ii) plaintiff’s conclusory “taking” label. The opinion signals that even at the pleading stage, courts will test whether the pleaded theory fits the legal definitions that actually trigger the EDPL.

B. Precedents Cited and Their Influence

1) Takings doctrine and the EDPL’s “acquisition” trigger

• Matter of Coalition for Fairness in Soho & Noho, Inc. v City of New York
  Cited for the modern typology of Takings Clause cases—physical acquisition/use, monetary exactions tied to property interests, or permanent physical occupation. The Third Department used it to show plaintiff’s allegations did not fit the “typical” categories because the Town did not physically occupy plaintiff’s land, demand an exaction, or permanently occupy her property; it acted on public right-of-way.
• Matter of Gazza v New York State Dept. of Envtl. Conservation
  Used for the foundational proposition that “a property interest must exist before it may be taken.” This mattered because plaintiff’s theory depended on treating an asserted “right to cross” as though the Town had taken a cognizable property interest; the court grounded analysis in whether plaintiff had a property interest that was actually acquired/vested away.
• Hargett v Town of Ticonderoga
  Cited to connect EDPL applicability to an “acquisition” via eminent domain. The court relied on EDPL 103(A)’s definition (“act of vesting of title, right or interest”) to conclude that impacts from guardrails placed within an existing right-of-way, without vesting of anything in plaintiff’s land, fall outside EDPL’s operative domain.
• Corsello v Verizon N.Y., Inc. and Dagro Assoc., LLC v City of Yonkers
  These cases were invoked not to rescue plaintiff’s claim, but to mark what was missing: a properly pleaded alternative avenue to seek just compensation for a de facto taking where formal eminent domain procedures were not invoked. The Third Department effectively signaled that “EDPL violation” is not a substitute label for an inverse-condemnation-style claim; the pleading must match the elements of a cognizable compensation theory.

2) Property torts: trespass and conversion

• Krakovski v Stavros Assoc., LLC
  Used for the basic trespass element: unauthorized entry onto the land of another. Because plaintiff pleaded (and it was undisputed) there was no encroachment onto her land, the trespass theory could not fit.
• Ciprich v Atwood and ARB Upstate Communications LLC v R.J. Reuter, L.L.C.
  These cases supplied the conversion elements and the requirement that conversion concerns identifiable tangible personal property—not real property. Plaintiff’s attempt to repackage the dispute as conversion failed because the subject matter was roadway infrastructure and alleged diminution in land use/value, not dominion over plaintiff’s chattel.

3) Negligent misrepresentation

• Lin Chen v Zum Dev., Inc. and Kurtz v Foy
  Cited for the elements: special relationship/duty, false information, reasonable reliance.
• Mandarin Trading Ltd. v Wildenstein
  Provided the governing description of a “special relationship” based on expertise or trust/confidence. The court used it to show that municipal communications about “considering” a request—without a false statement of fact and without a pleaded special relationship—do not satisfy this tort.

4) Unjust enrichment as an impermissible tax-assessment challenge

• Colgate Inn, LLC v Eberhardt, LLC
  Used to define unjust enrichment as quasi-contract/equitable relief in the absence of an agreement.
• Matter of Coden v Assessor of the Town of Huntington, Level 3 Communications, LLC v Jiha, and Matter of Adams v Schoenstadt
  These cases anchored the exclusivity of the RPTL tax certiorari remedy and the prerequisite grievance. The court treated plaintiff’s “tax refund” framing as, in substance, an assessment challenge that must proceed via the statutory pathway—thus not cognizable as unjust enrichment (or “conversion”) in this plenary action.

5) Judicial explanation on motions (CPLR 2219[a])

• Charalabidis v Elnagar, Neptune Issue Inc. Profit Sharing Plan v Eliopoulos, and Ruderman v City of New York
  Cited to reject plaintiff’s complaint that Supreme Court’s order lacked adequate detail. The Third Department reiterated that courts owe clarity but retain broad discretion regarding detail level.

6) Civil conspiracy

• Cohen & Lombardo, P.C. v Connors and Baker v Vanderbilt Co.
  Used for the rule that civil conspiracy is not an independent tort; it requires an actionable underlying tort plus agreement/overt act/participation/damages. Because the primary tort alleged was the failed “taking,” conspiracy necessarily collapsed.

7) Discrimination / unequal treatment

• Matter of Clarke v Azar
  Used to support dismissal where allegations do not show similarly situated comparators or an impermissible classification. Plaintiff’s pleading offered only conclusory “treated differently” assertions.

8) Nuisance (footnote guidance)

• Duffy v Baldwin and Trask v Tremper Prop. Assn., Inc.
  Although the court did not fully analyze private nuisance due to appellate briefing limitations, the footnote recited the governing principle: liability may arise from use of one’s own property that substantially and unreasonably interferes with another’s use and enjoyment. The subtext is important: even if nuisance can be predicated on lawful use of one’s own property, plaintiff still needed a viable theory tied to the Town’s right-of-way conduct and properly pleaded elements.

C. Legal Reasoning

1) The EDPL claim failed because plaintiff pleaded impact, not “acquisition”

The opinion’s central analytical move is definitional: EDPL procedures and remedies are keyed to “acquisitions” as EDPL 103(A) defines them—an “act of vesting” of some “title, right or interest” in real property for public use. Plaintiff did not allege the Town took title, an easement, a right-of-way expansion, or any comparable property interest from her parcels. Instead, she alleged that guardrails in the public right-of-way made it harder to cross the road between her parcels.

The court treated that as a quintessential mismatch between legal label and legal trigger: inconvenience or impediments produced by government action on government-controlled land may be actionable under some theories in some circumstances, but they are not, without an acquisition/occupation/exaction, an EDPL “taking” claim as pleaded here.

2) EDPL “procedural due process” failed for the same reason

Plaintiff tried to reframe the dispute as failure to follow EDPL procedures. The court’s response is straightforward: those procedures are not implicated “absent an actual or proposed acquisition.” In other words, one cannot bootstrap a process violation if the statute’s process has not been triggered.

3) Trespass and conversion were doctrinally incompatible with the pleaded facts

Because the guardrails did not encroach onto plaintiff’s land, trespass could not lie. Conversion was rejected both because plaintiff did not identify any tangible personal property over which defendants exercised dominion, and because conversion does not cover real property impacts. The court also treated these torts as dependent on the same “wrongful conduct” premise as the failed taking theory.

4) Negligent misrepresentation was rejected on two independent elements

The complaint did not identify a false representation of fact, only that officials said they would “consider” her request. Separately, plaintiff did not plead a “special relationship” that would create a duty to provide correct information. Either defect was sufficient.

5) Unjust enrichment was, in substance, a tax assessment claim

The plaintiff’s theory that the Town benefitted by lowering her property value while taxing it the same way was treated as a challenge to an “excessive” assessment. The Third Department enforced channeling rules: the RPTL scheme (grievance + tax certiorari) is the exclusive route. This is a recurring judicial move in New York—recharacterization of a claim based on substance, not caption, to protect statutory exclusivity and administrative prerequisites.

6) Civil conspiracy and discrimination fell with the pleading

With no underlying tort, conspiracy could not proceed. For discrimination, the court required factual allegations showing similarly situated comparators and impermissible classification (or other cognizable equal-protection-style theory); conclusory differential treatment is insufficient.

D. Impact

1) Clarifying the boundary between “project impacts” and EDPL takings

The decision reinforces a practical boundary for landowners confronting municipal road-safety or traffic-control measures: where government acts within an existing right-of-way and does not vest in itself any new property interest from the plaintiff, an EDPL “illegal taking” theory is unlikely to survive pleading. This does not foreclose all relief in all cases, but it demands that plaintiffs select a theory that matches the legal mechanism (e.g., an appropriate compensation claim for de facto taking where legally available, or a properly pleaded nuisance/other tort where elements are met).

2) Pleading discipline: labels will not substitute for EDPL definitions

Draina is also a pleading case. The court’s reasoning is not that plaintiff’s factual harm is necessarily trivial, but that the alleged harm does not fit the legal definitions that unlock the EDPL and several tort causes of action. Future litigants must plead (and be prepared to prove) either (i) a cognizable property interest that has been acquired/occupied/exacted, or (ii) a different theory with its own elements.

3) Strong channeling toward statutory tax remedies

The court’s treatment of unjust enrichment underscores that creative pleading will not evade the RPTL’s grievance-and-certiorari prerequisites. Plaintiffs alleging over-taxation linked to changed conditions must use the tax certiorari pathway, not equitable quasi-contract.

4) Municipal governance implication

For municipalities, the decision provides comfort that safety-motivated roadway installations within the right-of-way will generally be insulated from EDPL-based litigation—so long as the project stays within the public corridor and does not amount to a de facto physical occupation of private land.

4. Complex Concepts Simplified

“EDPL acquisition”

An “acquisition” under EDPL is not simply “the government did something that affected me.” It is the government obtaining (vesting in itself) some legally recognized interest in your real property—like taking title, taking an easement, or otherwise formally (or functionally) appropriating a property interest for public use.

“Right-of-way”

A roadway right-of-way is the strip of land the public entity already has the legal right to use for the road and related improvements. If the government builds within that strip (and does not expand into your land), many property-based claims that require intrusion onto your property will fail.

“De facto taking” vs. EDPL procedure

A “de facto taking” (often discussed as inverse condemnation) is a claim that the government effectively took property rights without formally condemning them. The court noted plaintiff did not plead an alternative compensation claim of that type. Separately, EDPL procedural steps (notices, hearings, etc.) typically apply when there is an actual/proposed condemnation—so they do not apply merely because a plaintiff alleges impacts.

“Trespass” vs. “nuisance”

Trespass is about physical entry onto your land. Nuisance is about substantial and unreasonable interference with use and enjoyment (often without physical entry). The plaintiff’s trespass claim failed because there was no entry onto her land; the nuisance claims were not successfully advanced on appeal.

“Tax certiorari exclusivity”

If the real complaint is “my property was assessed too high,” New York law requires a grievance first and then a tax certiorari proceeding. You generally cannot repackage that as unjust enrichment or conversion to bypass those steps.

5. Conclusion

Draina v Town of Ballston stands for a disciplined, definition-driven approach: EDPL takings procedures and claims are triggered by an “acquisition” of a real property interest, not by interference or inconvenience caused by municipal improvements installed wholly within an existing right-of-way. The decision also reinforces doctrinal guardrails across related claims—trespass requires entry on plaintiff’s land; conversion concerns tangible personal property; negligent misrepresentation requires a special relationship and a false factual statement; tax assessment complaints must proceed via RPTL channels; civil conspiracy needs a viable underlying tort; and discrimination claims require nonconclusory allegations of similarly situated comparators and impermissible bases for differential treatment.