Opinion
Index No. EF2022-7 RJI No. 2022-0040
04-05-2022
OXEN FARM LLC, Plaintiff, v. JACK PARDEE, BRADLEY PARDEE, Defendant.
Gayle A. Rosen, Attorneys for Plaintiff Andrew H. Van Buren, Attorney for Defendant
Unpublished Opinion
Gayle A. Rosen, Attorneys for Plaintiff
Andrew H. Van Buren, Attorney for Defendant
DECISION & ORDER (ORDER TO SHOW CAUSE NYSCEF MOTION #1)
John F. Lambert, Acting Supreme Court Judge
Plaintiff, by his attorney, Gayle A. Rosen, moved by order to show cause for an order pursuant to RPAPL §841, etc. directing Defendants to cease their unlawful trespass, restore the premises and property to their pre-nuisance condition, and for judgment in an amount to be determined at trial, and for such other and further relief as to this Court seems just and proper. Pursuant to CPLR § 2219(a), in support of this motion the Court has read the following e-filed documents, listed by NYSCEF document number (Motion #1) 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24,25,26 and 27. No papers were received in opposition, the defendant's attorney appeared and argued in opposition to the application.
The court directs the parties to use NYSCEF numbers, not exhibit numbers, to cite to the court's docket in future filings.
BACKGROUND
This matter involves a property commonly known as 20 Ed Wright Road, Hamden, New York. Plaintiff asserts the following facts: Plaintiff became owner by deed dated January 3rd, 2018. Plaintiff asserts that this property was subdivided into four parcels on or about June 14th, 2019. Plaintiff sold one of the parcels to the proposed necessary party, Liz Acre Farm LLC, on about December 2021. A condition of the purchase by Liz Acre Farm LLC property from plaintiff was that that plaintiff bring this action. Liz Acre Farm LLC purchased a one (1) year Replacement Property (Fire) Insurance Policy from Leather stocking bearing Policy No. 10-2021-22317 which was to be effective from December 27th, 2021 through December 27th, 2022. By a notice of cancelation dated February 18,2022, Leather stocking notified Liz Acre Farm LLC that the policy will be canceled as of 12:01AM (ST) on March 23rd, 2022, due to "unacceptable risk", ie, squatters and 6 horses.
In their verified answer, the Defendants assert that they have used, occupied and enjoyed the premises described as 20 Ed Wright Road, Hamden, New York, being the property described in the plaintiffs complaint as paragraph 3, and as further described in the deed annexed to the plaintiffs complaint as Exhibit A, including Lot 4, openly, notoriously, continuously, uninterruptedly, adversely and under a claim of right for a period in excess of ten (10) years and prior to any adverse claim and/or potential adverse claim by the plaintiff.
DISCUSSION
CPLR §A trespass may consist not only in making an unauthorized entry upon private property, but in refusing to leave after permission to remain has been withdrawn. It is well settled that a license or privilege to remain in a building or public place may be terminated by a lawful order not to remain which is personally communicated to the prospective trespasser by the owner or other authorized person. A person who defies such order will have remained unlawfully on the premises ellipses, internal quotation marks, brackets and citations omitted)" Navarro v Fed. Paper Bd. Co., 185 A.D.2d 590 (3d Dept 1992). A party claiming to have acquired title to land by adverse possession must prove that his or her possession thereof was (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required 10-year period (see Mentiply v. Foster,201 A.D.3d 1051,1057 [3d Dept 2022]). A claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, RPAPL 501 (3) (see Petry v. Gillon, 199 A.D.3d 1277, 1277 [3d Dept 2021]). Where the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was usually cultivated or improved or protected by a substantial enclosure by clear and convincing evidence (see Estate of Becker v. Murtagh, 19 N.Y.3d 75, 80-81 [2012]). Consequential damages, such as repair costs, depreciation, and damages caused by discomfort and inconvenience are recoverable in tort actions as damages for trespass and private nuisance. The measure of damages for permanent injury to property is loss of market value, or the cost of restoration, while the measure of damages for loss of use is the decrease in the property's rental value during the pendency of the injury. (See Volunteer Fire Assn, of Tappan, Inc. v. County of Rockland, 101 A.D.3d 853, 853 [2d Dept 2012]). "...[A] party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor" Emerald Green Prop. Owners Assn., Inc. v. Jada Developers, LLC, 63 A.D.3d 1396,1397 (3d Dept 2009). "The existence of a question of fact does not prevent a party from establishing a likelihood of success on the merits; success need not be a certainty to obtain a preliminary injunction" Cooperstown Capital, LLC v Patton, 60 A.D.3d 1251 (2009).
Ultimately there are questions of fact to be determined at trial. However, at the hearing of this motion defendants agreed to move the horses by April 1st, 2022 and move everything else by June 1st, 2022.
CONCLUSION
Considering the positions of the parties and weighing the appropriate factors, this Court, in its discretion, grants the plaintiff's application to the extent set forth below, it is hereby;
ORDERED that the Delaware County Sheriff shall immediately move the horses from Lot 4 into Lot 2 at Defendants' sole cost; and it is further
ORDERED that the Defendants remove all horses, animals, equipment, debris, and other items from Lots 4 and 2 no later than June 1,2022 by 1:00 p.m.
This is the decision and order of the Court.