Opinion
2018–01888 Index 501391/16
05-01-2019
Blimi ROSEN, etc., respondent, v. Robert M. SCHONBRUN, et al., appellants.
Goldberg Segalla LLP, Buffalo, N.Y. (Marc W. Brown and James D. Macri of counsel), for appellants. Goldberg Weg & Markus PLLC, New York, N.Y. (Alexander Markus of counsel), for respondent.
Goldberg Segalla LLP, Buffalo, N.Y. (Marc W. Brown and James D. Macri of counsel), for appellants.
Goldberg Weg & Markus PLLC, New York, N.Y. (Alexander Markus of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, ANGELA G. IANNACCI, JJ.
DECISION & ORDERORDERED that the order is affirmed, with costs.
In May 2015, the plaintiff purchased property located in Brooklyn. The defendants have owned the adjacent property since September 1991. A shared driveway is located between the two properties. The deed for each property provides a right-of-way easement over the other property for vehicles to access the rear of the properties. A garage is located at the rear of the defendants' property. Another garage was previously located at the back of the plaintiff's property and was attached to the defendants' garage, but by the time the plaintiff acquired title to her property, the garage on her property collapsed and had been removed.
The plaintiff commenced this action to recover damages for trespass and private nuisance, for injunctive relief, and, pursuant to RPAPL article 15, for declaratory relief, alleging that the defendants built a structure that extended onto her property without permission. Prior to the completion of discovery, the defendants moved for summary judgment dismissing the complaint. In support of their motion, the defendants submitted an affidavit of the defendant Robert M. Schonbrun in which he stated that when the defendants purchased their property, the defendants' garage was "attached to" the garage on the plaintiff's property, the garages were "separated by a party wall," and that the deeds to the parties' respective properties "all reference the property line running ‘through a party wall.’ " The affidavit also stated that, after the garage on the plaintiff's property collapsed, the prior owners of the plaintiff's property installed siding on their half of the party wall and the defendants repaired their half of the party wall to ensure that it was structurally sound. In opposition, the plaintiff submitted an affirmation from an officer of the prior corporate owner of the plaintiff's property. The affirmation stated that, after the roof of the garage on the plaintiff's property collapsed, the defendants erected a one-foot wide, siding-covered, cinder block wall on the property line that extended six inches onto the plaintiff's property. The Supreme Court denied, without prejudice, the defendants' motion for summary judgment dismissing the complaint. The defendants appeal."Entering upon the land of another without permission, even if innocently or by mistake, constitutes trespass" ( Curwin v. Verizon Communications [LEC], 35 A.D.3d 645, 645, 827 N.Y.S.2d 256 ; see Schulz v. Dattero, 104 A.D.3d 831, 834, 961 N.Y.S.2d 308 ; Kaplan v. Incorporated Vil. of Lynbrook, 12 A.D.3d 410, 412, 784 N.Y.S.2d 586 ). "The essence of trespass is the invasion of a person's interest in the exclusive possession of land" ( Zimmerman v. Carmack, 292 A.D.2d 601, 602, 739 N.Y.S.2d 430 ; see Curwin v. Verizon Communications [LEC], 35 A.D.3d at 645, 827 N.Y.S.2d 256 ; Kaplan v. Incorporated Vil. of Lynbrook, 12 A.D.3d at 412, 784 N.Y.S.2d 586 ). With respect to the tort of private nuisance, "a plaintiff must establish an interference with his or her right to use and enjoy land, substantial in nature, intentional or negligent in origin, unreasonable in character, and caused by the defendant's conduct" ( Kaplan v. Incorporated Vil. of Lynbrook, 12 A.D.3d at 412, 784 N.Y.S.2d 586 ; see Schulz v. Dattero, 104 A.D.3d at 833, 961 N.Y.S.2d 308 ).
Here, the defendants established their prima facie entitlement to judgment as a matter of law through the submission of the affidavit of Robert M. Schonbrun and documentary evidence which demonstrated that they had not wrongfully entered or interfered with the plaintiff's property, because their garage ended at a party wall which fell on the parties' property line (see Sakele Bros. v. Safdie, 302 A.D.2d 20, 25, 752 N.Y.S.2d 626 ; see also Ehrenberg v. Regier, 142 A.D.3d 765, 766, 37 N.Y.S.3d 10 ). In opposition, the plaintiff raised a triable issue of fact as to whether the siding-covered wall extended six inches onto the plaintiff's property, and, thus, whether the defendants' actions went beyond the scope of a party wall easement (see Stamp v. 301 Franklin St. Cafe, Inc., 135 A.D.3d 1209, 1211, 24 N.Y.S.3d 767 ).
The parties' remaining contentions either are without merit or need not be reached in light of our determination.
Accordingly, we agree with the Supreme Court's denial of the defendants' motion for summary judgment dismissing the complaint.
RIVERA, J.P., AUSTIN, COHEN and IANNACCI, JJ., concur.