Opinion
No. 2022-51333 Docket No. SC2022-27
06-28-2022
James K. McCormack, Plaintiff, v. Derrick Miller and Crystalyn Miller, Defendants.
Plaintiff by James K. McCormack, Pro Se Defendants by Derrick and Crystalyn Miller, Pro Se
Unpublished Opinion
Plaintiff by James K. McCormack, Pro Se
Defendants by Derrick and Crystalyn Miller, Pro Se
Michael J. Genute, J.
Background
In his complaint, dated February 7, 2022, the plaintiff seeks $3,480.00 for an alleged encroachment of approximately twenty feet onto his property resulting from a new leach field associated with repairs to the defendants' septic system. The complaint states that,
this ruined the value of the property for me and an encroachment as such would make it difficult to sell my property and reduce its value. I want the appraised value of the property the leach field is on and its surrounding area (79' x 25') and the cost to separate it from the rest of my property.
This is a unique case where the plaintiff and defendant agreed as to the facts of the case. Their disagreement lies in the value that should be afforded the plaintiff over an acknowledged encroachment.
It is worth noting that the plaintiff was addressed on the Record about bringing the Small Claims action with the possibility that he could be barred from future litigation in Supreme Court if the results of this litigation are not to his satisfaction. The plaintiff was further advised that if issues arise down the road regarding the septic system or otherwise, that he could be foreclosed from further litigation by choosing to move forward with this litigation. The plaintiff insisted that he had weighed all options, spoke to attorneys, and felt that this was his most reasonable venue for seeking compensation from the encroachment. Ultimately, the plaintiff concluded that he would rather seek some level of damages, as opposed to spending thousands in an effort to seek declaratory or injunctive relief in Supreme Court. As a result, there are aspects of property law that will not be fully addressed in this decision, and plaintiff is aware that he could be barred from pursuing further action in a higher court as a result of his decision to move forward with this small claims' litigation.
Testimony and Evidence
The facts are fairly simple and not in dispute, and testimony was taken somewhat out of turn considering that the parties were in agreement as to the facts of the complaint. The plaintiff's and defendants' property are adjoining. P-1; P-2; P-3, D-C. The defendants had repair work done to the septic system on their property, which required a new leach field. P-2; D-A. The work was facilitated by the non-profit entity, Opportunities for Chenango, but also involved Adsit Excavating, which was the business that installed the septic system, the engineer from Depot Engineering, and Mr. Fox, on behalf of the Town of McDonough. D-A. Amongst them, it was agreed that the best location for the septic system was at the far end of the defendants' property abutting up to approximately 3 feet of the plaintiff's property. D-A; D-3; P-2; P-3. While minutes from the town meeting strongly suggest that the placement of the septic system in this fashion would be in violation of 75A Sanitation Laws, there appears to be an understanding that the town could overcome said law via a process of "home rule". D-A.
Whatever was ultimately the case, all parties involved at the time were relying on the "old" tax map, which placed the leach field very close to the plaintiff's property. D-A; D-C; P-3. While the plaintiff had notice of this project and did not object to the work as it was being done, he testified to having a feeling that the defendants' property was expanding. This suspicion prompted his own survey of his property months later, which revealed that the leach field had crossed onto his property by approximately 20 feet, resulting in the plaintiff seeking to separate a 79' by 25' feet parcel, the area surrounding the leach field, to maintain clear title on his property. P-1.
The defendants do not dispute the encroachment or the plaintiff's need to partition the parcel from his property to protect his title interests, and the plaintiff does not allege that the defendants intentionally encroached on his property; only that they should have noticed that the leach field expanded beyond some boundary stakes that the defendant, Derrick Miller, acknowledged to moving back once realizing that the system encroached beyond the wooden stakes. Defendant Derrick Miller also testified to maintaining the area where the leach field encroached for approximately 6 years, which was not disputed by the plaintiff.
Ultimately, both parties acknowledge that this was an oversight by all parties involved in building, engineering, and approving the system as constructed. The parties also agree that there should be some compensation for this encroachment. The parties do not agree, however, on the amount of the compensation.
The plaintiff submitted a letter from David Thomas of Chenango County Realty opining that a fair price for the 79' x 25' parcel to be partitioned from his property would be $2,500.00. P-5. Additionally, the plaintiff seeks reimbursement for a survey, estimating the cost to be approximately $380 to $400, based upon verbal estimates he received. He also included a lawyer fee of $400 to update and file a new deed description, along with transferring the parcel to the defendants, and $200 for recording fees. The plaintiff initially sought reimbursement for the cost of having the property surveyed, but was not including that in his offer to resolve the matter. There were no written estimates or documentation to otherwise address these additional costs.
The defendants offered calculations extrapolated from other local properties in order to price out the value of the parcel to be partitioned. D-F; D-G. In so doing, the defendants came up with a price of less than $200.00 for the small parcel, but felt that $500 was a reasonable value and would have agreed to split the cost of the $380 survey. D-G.
While the parties negotiated on the record, they could not come to a resolution. As a result, the Court is left to decide on an appropriate amount of damages to be awarded to the plaintiff for the encroachment onto plaintiff's property by the defendants' installation/upgrade of their septic system and specifically their new leach field.
Analysis
In small claims cases, the plaintiff bears the burden of proving a claim by a preponderance of the evidence. The court has the obligation to apply the facts to the relevant law, keeping in mind the statutory mandate of substantial justice (UCCA §1804).
While "small claims matters are not bound by the rules of evidence, a determination may not be based solely on hearsay." Rowe v. Silver & Gold Expressions, 968 N.Y.S.2d 202 (3 Dept. 2013) (citation omitted). "Even at Small Claims, with its relaxed rules of procedure and evidence, the fundamental right to confront a witness by cross-examination must be preserved." Falker v. Chrysler Corp., 119 Misc.2d 375, 378 (Civ. Ct. 1983) (citation omitted).
As noted in the factual background, this is the type of case typically litigated in Supreme Court, where jurisdiction lies to award injunctive relief. RPAPL 871(1). As this Court is without such jurisdiction, it can only consider a verdict for money damages, which would also be an option should this case have been brought in Supreme Court. Id. In this regard, "the appropriate measure of damages is the difference between the value of the plaintiff's property with and without the encroachment." Generalow v. Steinberger, 517 N.Y.S.2d 22, 24 (2 Dept. 1987) (citation and grammatical marks omitted). Furthermore, "(i)n a small claims action, the reasonable value (to make a party whole) may be established by an itemized bill or invoice, receipted or marked paid, or two itemized estimates for services or repairs." Skinner v. Crandall, 32 N.Y.S.3d 692, 693 (3 Dept. 2016), citing UCCA §1804 (internal quotations/brackets omitted).
Initially, it is important to note that the "... plaintiff testified that when he first saw the (septic system and leach field) under construction, he did not pursue his rights because he was unaware that defendants were encroaching on (his land)." Marsh v. Hogan, 919 N.Y.S.2d 536, 538 (3 Dept. 2011). It was only after it was installed that the plaintiff questioned its placement and had his property surveyed. While the Court is certainly not placing any onus on a property owner to always be vigilant of encroachments on their property, this situation could have been remedied at the time that the project was being contemplated if the plaintiff had been aware of his property boundary, or at least had concerns regarding the placement of the septic system. While the Court does not place fault upon the plaintiff, the Court notes that in some regard, there was a mutual mistake by not only those involved in coordinating the placement of the septic system, but also by the plaintiff, who did not take any action despite the obvious nature of the project and encroachment and still did not take any legal action for over one year after the new system was installed. See, Tinkess v. Burns, 261 N.Y.S.2d 472, 474 (4 Dept. 1965). Nevertheless, the Court does not find any specific legal impediment to the plaintiff's action under these set of circumstances.
Even in the ordinary course of seeking equitable relief, an award of damages would be appropriate under the circumstances where there was no "willful action by defendants or that the encroachment emanated from any claim of right..." Christopher v. Rosse, 458 N.Y.S.2d 8, 9-10 (3 Dept. 1982) (citation omitted). Ultimately, "(d)amages should include the reasonable cost (to ensure that the plaintiff is able to protect the value and worth of his property)." 458 N.Y.S.2d at 9-10.
While the plaintiff shared a letter/estimate of the value of the infringement itself, "(t)he plaintiff failed to produce any evidence as to a diminution in the value of (his) property which resulted from the encroachment..." Generalow v. Steinberger, 517 N.Y.S.2d at 24. Even with that, the plaintiff only offered one "estimate", as opposed to two as called for in UCCA §1804. As a result, it is difficult to assess damages, without the amount being "speculative and improper." 517 N.Y.S.2d at 24 (2 Dept. 1987). With that said, the Court will certainly consider the plaintiff's cost to have the parcel surveyed, subdivided, and transferred to the defendants to ensure that there is no impediment to the plaintiff's title for a future sale of the property.
While the costs outlined by the plaintiff failed to include any written estimates or the like, the defendants did not contest the costs, and the Court takes judicial notice that the estimates were not unreasonable. As a result, the Court finds that the plaintiff's estimated costs to complete a conveyance of the encroached upon property of $980—representing attorney costs ($400); survey costs of the subdivision ($380); and recording costs ($200)—to be reasonable. Normally in such a conveyance, the Court will also take judicial notice that the parties would typically share said costs. As a result, the Court finds that the defendants are responsible for half of those approximate costs and award plaintiff $490 for the costs of completing such a conveyance.
The Court is then left to decide on the reduction of the value of the plaintiff's property as a result of the encroachment or conveyance of the parcel encroached upon. Without an appraisal in this regard, coming up with an amount for the property is extremely difficult and speculative. However, as this is a small claims action, the goal of the Court is to do "substantial justice" between the parties. Considering the very small portion of land taken out of the approximate 11-acre parcel of the plaintiff, the Court finds that $750.00 is a reasonable reduction of value of the plaintiff's property as a result of the encroachment and anticipated conveyance of the parcel containing the encroachment. See, Skinner v. Crandall, 32 N.Y.S.3d at 94.
For all of these reasons, the plaintiff is entitled to half of his costs of conveying the encroachment to the defendants and the determined amount of the reduction of value of the plaintiff's property as a result of the encroachment.
Decision
Plaintiffs are awarded Judgment in the amount of $1240.00, with the parties to split court costs. The foregoing constitutes the Decision and Order of the Court.