Opinion
Index 503977/2021
03-28-2022
RICHARD WHITEHALL and CORETTA WHITEHALL, Plaintiffs, v. CLIFFORD PARRIS and TANYA PARRIS, Defendants. Motion Sequence No. 1
CARL J. LANDICINO J.S.C.
Unpublished Opinion
PRESENT: HON. CARL J. LANDICINO, JSC
DECISION AND ORDER
CARL J. LANDICINO J.S.C.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed ................................................... 6-12, Opposing Affidavits (Affirmations) ............................................. 17-19, Reply Affidavits (Affirmations) ................................................... 20-22
After a review of the papers and oral argument on the motion the Court finds as follows:
The Plaintiffs Richard Whitehall and Coretta Whitehall (hereinafter the "Plaintiffs have commenced this action against Defendants Clifford Parris and Tanya Parris (hereinafter the "Defendants") relating to the Plaintiffs property known as 1271 East 48th Street Brooklyn New York. The Plaintiffs plead causes of action for private nuisance, trespass, and declaratory judgment including a permanent injunction. The Plaintiffs allege that the Defendants reside at a property abutting their property known as 4802 Avenue I, Brooklyn, New York. The Plaintiffs also allege that there are trees and/or shrubs growing on the Defendants' property that are encroaching/overhanging on the Plaintiffs' property and that the Plaintiffs' property' has been damaged as a result.
The Defendants now move, pre-answer, (motion sequence #1) to dismiss the complaint for failure to state a cause of action pursuant to 3211(a)(7). The Defendants contend that the nuisance and trespass causes of action are time barred. The Defendants also contend that the Plaintiffs have failed to sufficiently state the causes of action asserted in the Complaint. The Defendants argue that the facts posed in a light most favorable to the Plaintiffs, branches overhanging from one property to another that cause staining, does not support a claim for private nuisance. The Defendants also argue that the Plaintiffs have failed to properly plead a claim for trespass. The Defendants point to the complaint and the fact that it alleges that a survey was conducted in 2020 that indicated that a fence between the subject parcels was placed over the property line. No further detail was provided. Finally, the Defendants argue that the Plaintiffs' cause of action seeking an injunction that would prevent Defendants from interfering with Plaintiffs' ability to cut or trim the overhanging branches should be dismissed as the Defendants have acknowledged the Plaintiffs' ability to do so.
Although the Defendants have moved pursuant to 321 l(aX7) and do not cite 321 l(a)(5) they raise the issue of time bar. However, the Plaintiffs have not raised this as an objection and have otherwise addressed the issue. As such Plaintiffs were not prejudiced and the Court will address the issue. See Matter of LiMandri, 171 A.D.2d 747, 567 N.Y.S.2d 303 [2d Dept 1991]; Frankel v. Stavsky, 40 A.D.3d 918, 919, 838 N.Y.S.2d 90 [2d Dept 2007].
The Plaintiffs oppose the motion. Primarily, the Plaintiffs contend that they have sufficiently alleged facts to satisfy the liberal pleading standard provided in CPLR 3211. The Plaintiffs address the statute of limitations argument made by the Defendants and argue that the actions of the Defendants are continuous and ongoing. As such, the Plaintiffs contend that the claims are not time barred. The Plaintiffs acknowledge that while trees are not generally nuisances, in this instance the tree sheds matter that causes staining and property damage.
Statute of Limitations
As an initial matter, the Court will address the Defendant's assertion of time bar regarding the Plaintiffs claims for trespass and nuisance. As to nuisance, assuming that the claim for nuisance is otherwise viable, the complaint states that the nuisance is continuous. Paragraphs 19-20 of the complaint alleges as follows:
19. However, Defendants continued to allow the Defendant's trees and shrubs to continue to grow and intrude on Plaintiffs' property.
20. These intrusions have resulted in continual staining of the concrete driveway and patio of the Plaintiffs.
Insofar as the allegation is that the nuisance is continuing, it is not time barred. "It is well settled, however, that injuries to property caused by continuing nuisance involve a continuous wrong and, therefore, generally give rise to successive causes of action that accrue each time a wrong is committed." Town of Oyster Bay v. Lizza Indus., Inc., 22 N.Y.3d 1024, 1029, 4 N.E.3d 944, 947 [2013](internal quotations omitted).
As to the trespass (fence) allegation, Plaintiffs allege that a survey was conducted "[o]n or about July 20, 2020"..." which indicated that Defendants' fence was improperly installed over the property line and intruding on to Plaintiffs' property." (See Complaint Paragraph 24). By affidavit in support of the Defendant's motion, Defendant Clifford Parris contends that the fence was present in 1999, when the Defendants moved into the house. He also states that".. .the fence has been in the same location for more than 22 years" and "[w]e have continuously occupied the disputed parcel as our own from the time purchased [the prior owner's] property onward." The Plaintiffs do not challenge this contention and do not otherwise specify how long the fence has been located at the property. However, without more from the Defendants in this pre-answer motion to dismiss, the Court is unable to determine whether the action for trespass is time barred due to applicable statutes of limitations. In Bloomingdales, Inc. v. New York City Transit Authority, the Court held that a concrete duct physically interrupted the Plaintiffs storm drainpipe and as such constituted a "continuing trespass and resulted in successive causes of action." Bloomingdales, Inc. v. New York City Transit Auth, 52 A.D.3d 120, 124, 859N, Y.S.2d22 [2008], affd, 13 N.Y.3d 61, 915 N.E.2d 608 [2009]. As such, the question of whether the trespass claim is time barred cannot be determined at this time.
Failure to State a Cause of Action
On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove his or her claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss.Kinnear v. Cefoli, 184 A.D.3d 628, 123 N.Y.S.3d 509, 510 [2d Dept 2020].
Pursuant to CPLR §3013, "[statements in a pleading should be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense" Furthermore, "[a]lthough on a motion to dismiss plaintiffs allegations are presumed to be true and accorded every favorable inference, conclusory allegations - claims consisting of bare legal conclusions with no factual specificity - are insufficient to survive a motion to dismiss." Godfrey v. Spano, 13 N.Y.3d 358, 373, 892 N.Y.S.2d 272, 278 [2009].
"[W]here evidentiary material is adduced in support of the motion, the court must determine whether the proponent of the pleading has a cause of action, not whether the proponent has stated one" (Peter F. Gaito Architecture, LLC v. Simone Dev: Corp., 46 A.D.3d 530, 530 [2007]; see Meyer v. Guinta, 262 A.D.2d 463, 464 [1999]). A motion to dismiss based on documentary evidence may be appropriately granted "only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law" (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 [2002]; see Leon v. Martinez, 84 N.Y.2d at 88, Lucia v. Goldman, 68 A.D.3d 1064, 1065 [2009]; Mazur Bros. Realty, LLC v. State of New York, 59 A.D.3d 401, 402 [2009]).Feggins v. Marks, 171 A.D.3d 1014, 1015-6, 99N.Y.S.3d 45, 47 [2d Dept 2019].
The Court denies the Defendants' application made in relation to the Plaintiffs' cause of action for private nuisance. "A defendant may be subject to liability for a private nuisance where he intentionally and unreasonably invades a plaintiffs interest in the private use and enjoyment of his land." Zimmerman v. Carmack, 292 A.D.2d 601, 602, 739 N.Y.S.2d 430, 431-32 [2d Dept 2002]. In the instant action, the Plaintiffs contend in their Complaint (paragraph 8) that "Plaintiffs have requested the Defendants remove the shrubbery or trees that come over Defendant's property and across the property line on to Plaintiffs property." In Turner v, Coppola, the Court held that "[u]pon the facts stated and the allegations made in the complaint, there is insufficient basis for an action as a private nuisance because real, sensible damage has not been shown to result from the overhanging tree branches or leaves." Turner v. Coppola, 102 Misc.2d 1043, 1045, 424N.Y.S.2d 864, 866 [NY Sup. Cgt., Nassau Cty. 1980], affd, 78 A.D.2d 781, 434 N.Y.S.2d 563 [2d Dept 1980]. The Court in Turner v. Coppola further held that "trees ordinarily are not nuisances, unless decayed or otherwise dangerously unsound." Id. Notwithstanding this, the Plaintiffs contend that the Defendants have prevented the Plaintiffs from self help trimming of the trees overhanging on the Plaintiffs' property and that as a result the material falling upon their property is damaging their property in that it causes staining of their driveway and patio. Taking facts as alleged in the complaint as true, the Plaintiffs do allege or describe a circumstance that serves to create a nuisance, especially since the Plaintiffs allege that a self help remedy to ameliorate the condition is not available to them. See 1212 Ocean Ave. Hous. Dev. Corp. v. Brunatti, 50 A.D.3d 1110, 1112, 857 N.Y.S.2d 649, 651 [2d Dept 2008].Accordingly, the Defendant's application to dismiss the Plaintiffs' first cause of action for a private nuisance is dismissed.
The Court also denies the Defendants' application made in relation to the Plaintiffs' cause of action for trespass. "The essential elements of a cause of action sounding in trespass are the intentional entry into the land of another without justification or permission." Wheeler v. Del Duca, 151 A.D.3d 1005, 1006-07, 58 N.Y.S.3d 409, 411 [2d Dept 2017]. In the instant action, the Plaintiffs contend in their Complaint (paragraph 37) that the Defendants' "fence was erected by the Defendants not on their own lands but upon the lands of the Plaintiff." The Court finds that the Plaintiffs have adequately pleaded a cause of action sounding in trespass. See Zimmerman v. Carmack, 292 A.D.2d 601, 602, 739 N.Y.S.2d 430, 432 [2d Dept 2002]; see also Plainview Properties SPE, LLC v. Cty. of Nassau, 181 A.D.3d 731, 734, 121 N.Y.S.3d 338, 343 [2d Dept 2020]; Rosen v. Schonbrun, 172 A.D.3d 771, 773, 100N.Y.S.3d 95, 97 [2d Dept 2019]. Therefore, the application to dismiss the Plaintiffs' cause of action for trespass is denied.
The Court also denies the Defendants' application made in relation to the Plaintiffs' cause of action for declaratory judgment as it relates to the reasonable cutting of branches to the extent they invade and/or result in damage to the Plaintiffs' property. The Complaint asks for a "declaratory judgment allowing Plaintiffs to trim Defendant's shrub and tree branches to the extent that they overhang or invade the property of the Plaintiffs and that Defendants are enjoined from interfering with said judgment." "A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration." State Farm Mut. Auto. Ins. Co. v. Anikeyeva, 89 A.D.3d 1009, 1010, 934 N.Y.S.2d 196, 198 [2d Dept 2011], quoting Stover Co. v. Skrobisch, 144 A.D.2d 449, 533 N.Y.S.2d 967 [2d Dept 1988]. The Court finds that the Plaintiffs have sufficiently stated a cause of action seeking a declaratory judgment.
Nevertheless, "'[w]hether the complaint will later survive a motion for summary judgment, or whether the Plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss."' Endless Ocean, LLC, 113 A.D.3d at 589, quoting Shaya B. Pac, LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38 [2d Dept 2006].
Based on the foregoing, it is hereby ORDERED as follows;
The Defendants' motion (motion sequence #1) is denied. Defendants shall have 30 days from service of a copy of this decision and order with notice of entry to interpose an answer.
The foregoing constitutes the Decision and Order of the Court.