Opinion
2014-08-14
MADISON 96TH ASSOCIATES, LLC, Plaintiff–Respondent, v. 17 EAST 96TH OWNERS CORP. sued herein as 17 East Owners Corp., Defendant–Appellant. 17 East 96th Owners Corp., Plaintiff, v. Madison 96th Associates, LLC, Defendant, 21 East 96th Street Condominium, Defendant–Respondent. [And Third–Party Actions].
Charles E. Boulbol, P.C., New York (Charles E. Boulbol of counsel), for appellant. Schoeman Updike Kaufman Stern & Ascher LLP, New York (Charles B. Updike of counsel), for Madison 96th Associates, LLC, respondent.
Charles E. Boulbol, P.C., New York (Charles E. Boulbol of counsel), for appellant. Schoeman Updike Kaufman Stern & Ascher LLP, New York (Charles B. Updike of counsel), for Madison 96th Associates, LLC, respondent.
Gartner & Bloom, P.C., New York (Arthur P. Xanthos of counsel), for 21 East 96th Street Condominium, respondent.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered May 29, 2013, which granted plaintiff's motion for summary judgment on the issue of liability, unanimously affirmed, without costs.
This is an action for trespass based on the encroachment of air conditioners from defendant 17 East 96th Owners Corp.'s (defendant) abutting building into plaintiff Madison 96th Associates, LLC's (plaintiff) air space. It is immaterial that plaintiff failed to submit a survey accompanied by the surveyor's affidavit as proof of the encroachment ( see Thomson v. Nayyar, 90 A.D.3d 1024, 1026, 935 N.Y.S.2d 654 [2d Dept.2011] ). Defendant's formal judicial admission in its answer is dispositive ( see People v. Brown, 98 N.Y.2d 226, 232 n. 2, 746 N.Y.S.2d 422, 774 N.E.2d 186 [2002];GJF Constr., Inc. v. Sirius Am. Ins. Co., 89 A.D.3d 622, 626, 934 N.Y.S.2d 697 [1st Dept.2011] [Richter, J., concurring]; Performance Comercial Importadora E Exportadora Ltda v. Sewa Intl. Fashions Pvt. Ltd., 79 A.D.3d 673, 915 N.Y.S.2d 44 [1st Dept.2010] [allegation in complaint] ). Moreover, defendant's attorney's informal judicial admission that the air conditioners “admittedly encroach” on plaintiff's air space is some evidence of the encroachment ( see Matter of Union Indem. Ins. of N.Y., 89 N.Y.2d 94, 103, 651 N.Y.S.2d 383, 674 N.E.2d 313 [1996];Leonia Bank v. Kouri, 3 A.D.3d 213, 220, 772 N.Y.S.2d 251 [1st Dept.2004] ), as is the testimony of one of defendant's unit owners confirming the accuracy of a document indicating the protrusion of his air conditioner.
The orders relied upon by defendant as law of the case were not binding on the motion court in deciding the instant motion for summary judgment because of the parties' different evidentiary burdens on the motions that those orders decided ( see Tenzer, Greenblatt, Fallon & Kaplan v. Capri Jewelry, 128 A.D.2d 467, 513 N.Y.S.2d 157 [1st Dept.1987] ). Moreover, the September 6, 2006 order did not actually decide the relevant issue ( see Ferolito v. Vultaggio, 115 A.D.3d 541, 982 N.Y.S.2d 449 [1st Dept.2014];NYP Holdings, Inc. v. McClier Corp., 83 A.D.3d 426, 427–428, 921 N.Y.S.2d 35 [1st Dept.2011] ). In any event, this Court is not bound by law of the case as represented by the trial level rulings defendant relied upon ( Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867 [1975] ).
Contrary to defendant's contention, dismissal, by the previously assigned Justice, of its adverse possession counterclaim and affirmative defense on the ground that it could not actually possess plaintiff's air space does not preclude plaintiff's claim for interference with its rights ( see generally Ain v. Glazer, 257 A.D.2d 422, 423, 683 N.Y.S.2d 241 [1st Dept.1999] ).
The assignment to plaintiff of the claim in this action was not champertous. The action had been commenced before the assignment and the closing on the property, and the purpose of the assignment was not to make money from a claim that “would not be prosecuted if not stirred up,” but to enforce a legitimate claim ( Trust for Certificate Holders of Merrill Lynch Mtge. Invs., Inc. Mtge. Pass–Through Certificates, Series 1999–C1 v. Love Funding Corp., 13 N.Y.3d 190, 201, 890 N.Y.S.2d 377, 918 N.E.2d 889 [2009]; [internal quotation marks omitted] see also 71 Clinton St. Apts. LLC v. 71 Clinton Inc., 114 A.D.3d 583, 585, 982 N.Y.S.2d 6 [1st Dept.2014] ).
This Court declines to reach defendant's arguments regarding damages since summary judgment was only awarded on liability and the issue of the amount of damages has not yet been addressed below. Moreover, nominal damages are presumed in trespass cases (see Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 95–96, 595 N.Y.S.2d 931, 612 N.E.2d 289 [1993];Shiffman v. Empire Blue Cross & Blue Shield, 256 A.D.2d 131, 681 N.Y.S.2d 511 [1st Dept.1998] ), obviating the need for plaintiff to make out a prima facie case for damages on its motion for summary judgment on liability.
We have considered defendant's other contentions, and find them unavailing. GONZALEZ, P.J., SWEENY, MOSKOWITZ, FREEDMAN, KAPNICK, JJ., concur.