Opinion
No. 511119/2021
05-03-2022
Fayette Holdings LLC, Plaintiff, v. Sumner Place LLC and Park Premium Enterprise Inc. d/b/a Park Builders and Developers, Defendants.
Unpublished Opinion
PRESENT: Larry D. Martin, J.S.C.
DECISION & ORDER
HON. LARRY D. MARTIN, JUDGE
In a real property dispute between neighbors, plaintiff moves pursuant to CPLR 3211(a)(1) and (7) to dismiss defendants' third, fourth, fifth, sixth, seventh, and eighth counter claims (Mot Seq 3).
FACTS
In or about 2018 or 2019, defendant Sumner Place LLC ("Sumner") and its general contractor, Park Premium Enterprise Inc., d/b/a Park Builders and Developers ("Park"), began construction at the premises located at 21 Fayette Street, Brooklyn, NY ("Defendants' Property"), which adjoins real property owned by plaintiff Fayette Holdings LLC ("Fayette") located at 19 Fayette Street ("Plaintiffs Property"). To facilitate said construction, Sumner entered into an agreement with Fayette that granted defendants "temporary, limited, revocable access" to Plaintiffs Property to install and maintain certain protective equipment ("License Agreement," NYSCEF Doc 2). Said License Agreement further provided that, among other things, prior to commencing any work, Sumner was obligated to: (1) promptly repair all damage or injury to Plaintiffs Property at Sumner's sole cost and expense; (2) only make such repairs with plaintiffs prior approval and to plaintiff s reasonable satisfaction; and (3) secure liability insurance and provide plaintiff with copies of the full polices, certificates, and endorsements. Fayette subsequently sued for money damages and injunctive relief alleging defendants proceeded with construction without complying with the License Agreement's terms. Fayette now moves to dismiss defendants' stated counter claims (Mot Seq 3).
Fayette thereafter moved for a preliminary injunction to enjoin defendants from continuing construction (Mot Seq 1, NYSCEF Doc 14) and defendants cross-moved for sanctions and attorney fees accusing Fayette of "knowingly submitting materially false evidence" (Mot Seq 2, NYSCEF Doc 17). The Court (Boddie, J.) denied both without prejudice (Decision & Order, NYSCEF Doc 43). Plaintiffs subsequent appeal was also denied (Second Department Order, NYSCEF Doc 58).
DISCUSSION
I. Third Counter Claim (Fraud)
Defendants' third counter claim sounds in fraud, which must satisfy the particularized pleading requirements of CPLR 3016(b). To wit, the elements of fraud "must be supported by factual allegations containing the details constituting the wrong" (House of Spices (India), Inc. v SMJ Services, Inc., 103 A.D.3d 848, 850 [2d Dept 2013]). Here, defendants summarily allege the elements without factual allegations containing the details constituting the wrong (see Amended Answer, 9). This is insufficient to satisfy the heightened pleading requirements of CPLR 3016(b).
II. Fourth (Preliminary Injunction). Fifth (Private Taking). Sixth (RPAPL $ 871). and Seventh (Trespass) Counter Claims
Underlaying defendants' fourth through seventh counter claims, defendants allege Fayette erected and/or constructed "stucco" on its property that encroaches upon and trespasses onto Defendant's Property without license, easement, or other permission or right to do so.
In their fourth counter claim, defendants seek a "mandatory" injunction to compel removal of the offending stucco but point to the "permanent" injunction standard in their memoranda of law (see Defs' Opp'n at ¶ 23, NYSCEF Doc 67). Since they ask the Court to order Fayette to act before trial, defendants actually seek a preliminary injunction, or temporary restraining order (TRO), which is an "extraordinary and drastic remedy" that is rarely granted and "only under unusual circumstances where such relief is essential to maintain the status quo pending trial" (see CPLR § 6301; Shake Shack Fulton St. Brooklyn, LLC v Allied Prop. Grp., LLC, 177 A.D.3d 924, 927 [2d Dept 2019]). Pursuant to CPLR 6301, a preliminary injunction may be granted in any action where:
it appears that the defendant threatens or is about to do ... an act in violation of the plaintiffs rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff.A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that "immediate and irreparable injury, loss or damage will result unless the [party] is restrained before the hearing can be had." Here, defendants have alleged neither facts suggesting immediate and irreparable injury, loss or damage would result unless Fayette is restrained before a hearing, nor facts suggesting that Fayette's continued encroachment would render a judgment in defendants' favor ineffectual or otherwise prove injurious beyond that which money damages would make whole.
Defendants' sixth counter claim seeks the same relief but points to RPAPL § 871. Arguing for its dismissal, Fayette erroneously points to the difficult standard of obtaining an injunction under the statute (see Town of Fishkill v Turner, 60 A.D.3d 932, 933 [2d Dept 2009]). But whether defendants make the requisite showing is of no import at the pre-discovery motion to dismiss stage. Here, defendants allege Fayette's offense is hostile, and that Fayette has failed to abate the same, despite notice of its impropriety, thereby depriving defendants of use and enjoyment of its property. These allegations, taken as true, are sufficient to withstand dismissal.
Defendants' fifth counter claim seeks damages for a 'private taking' and cites inapplicable inverse condemnation cases, wherein the government takes property from private landowners (see generally Corsello v Verizon New York, Inc., 18 N.Y.3d 777 [2012]). Defendants have not showed that private taking is a cognizable cause of action under New York law.
Defendants' seventh counter claim seeks damages for trespass, the elements of which are "intentional entry onto the land of another without justification or permission" where intent means "intending the act which produces the unlawful intrusion" (Marone v Rally, 109 A.D.3d 880, 883 [2d Dept 2013]). Here, defendants adequately pled a cause of action to recover damages for trespass (see Meadow Lane Equities Corp. v Hill, 63 A.D.3d 699, 700-01 [2d Dept 2009]).
III. Eighth Counter Claim (Abuse of Process)
Defendants' eighth counter claim is for abuse of process, which entails three essential elements, namely: First, there must be regularly issued process, civil or criminal, compelling the performance or forbearance of some prescribed act; second, the person activating the process must be moved by a purpose to do harm without that which has been traditionally described as economic or social excuse or justification; and lastly, defendant must be seeking some collateral advantage or corresponding detriment to the plaintiff which is outside the legitimate ends of the process (Julian J. Studdle, Inc. v. Lefrak, 41 N.Y.2d 881 [1977]). Assuming the truth of the facts pleaded along with every favorable inference to be derived therefrom, the counterclaims are sufficient to state a cause of action sounding in abuse of process.
CONCLUSION
Accordingly, it is hereby ORDERED, plaintiff's motion is to dismiss (Mot Seq !$) is granted as to defendants' third, fourth, and fifth counter claims and denied as to the sixth, seventh and eighth.