Summary
In Haddad, the Court held that due to the broad nature of CPLR §3101(a) and §3120(a)(1)(ii), the plaintiff was permitted to inspect defendant's property despite the fact that plaintiff could actually see the defendant's property from their own property and that plaintiff may have made an informal pre-action inspection.
Summary of this case from McAllister v. Transform SR Home Improvement Prod.Opinion
May 13, 1991
Appeal from the Supreme Court, Kings County (Dowd, J.).
Ordered that the order is reversed insofar as appealed from, as a matter of discretion, without costs or disbursements, that branch of the defendants' motion which was for a protective order to vacate the plaintiffs' notice dated March 15, 1989, to permit entry onto the property is denied, and the plaintiffs' cross motion is granted to the limited extent that the plaintiffs' attorney or other agents may inspect the defendants' premises and take measurements, and it is further,
Ordered that the defendants are directed to comply with the plaintiffs' notice to permit the inspection and survey within 20 days after service upon them of a copy of this decision and order with notice of entry and a notice of the time at which the inspection is to occur, or at such other time as the parties may agree; and it is further,
Ordered that plaintiffs shall not personally participate in the inspection.
In this dispute between neighbors over whether the defendants' alterations and additions to their home are in keeping with their building permit and with the applicable zoning laws, the defendants did not contest before the Supreme Court the relevance of the sought-after inspection (see, CPLR 3101 [a]; Bruno v Dellwood Foods, 124 A.D.2d 773). Moreover, neither the fact that the plaintiffs can view the defendants' premises from their own property nor the fact that plaintiffs may have made an informal pre-action inspection is sufficient to defeat the right afforded the plaintiffs by CPLR 3120 (a) (1) (ii) (see, Marcus Sons v Federal Ins. Co., 24 A.D.2d 922). The Supreme Court thus should have allowed the inspection and measurements sought, limiting the plaintiffs' request only by the requirement that the plaintiffs be prohibited from personally participating in the inspection so as to avoid embarrassment, annoyance, and an increase in tension between the litigants (see, CPLR 3103 [a]). Kooper, J.P., Sullivan, Harwood and Rosenblatt, JJ., concur.