Opinion
No. 600596/08.
2010-08-31
OLYMPIC FUNDING, LLC, Plaintiff, v. LADIES MILES INC., and The Board of Managers of the O'Neill Condominium, Defendant.
Tannenbaum, Helpern Syracuse & Hirschtritt, LLP, by Kenneth M. Block, Esq., Attorneys for plaintiff. Cohen Tauber Spievack & Wagner, P.C., by Sari E. Kolatch, Esq., Attorneys for defendants.
Tannenbaum, Helpern Syracuse & Hirschtritt, LLP, by Kenneth M. Block, Esq., Attorneys for plaintiff. Cohen Tauber Spievack & Wagner, P.C., by Sari E. Kolatch, Esq., Attorneys for defendants.
MANUEL J. MENDEZ, J.
Plaintiff brings this action seeking injunctive relief or compensatory damages as a result of defendant's continuing trespass upon plaintiff's property through the permanent installation of air conditioning ducts, electrical conduits and sewage drains in the basement of plaintiff's premises. The liability phase of this action was tried by the court on May 12, 2010. At the conclusion of the liability phase the parties requested time, to July 23, 2010, to submit legal memoranda. Following submission and after review of all the evidence presented the court renders its decision.
FACTS
Defendants were owners of a building located at 655 Sixth Avenue, New York, NY, which is being converted to a condominium. Plaintiff is the purchaser of two commercial units in the new condominium located on the first floor and basement of the building. Prior to entering into a contract plaintiff obtained an offering plan with plans and specifications from the defendants(see Defendant's A in evidence). This offering plan contained plans and specifications for the building.
The parties entered into a contract for the sale of the commercial units on February 8, 2005 (see plaintiff's 4 in evidence “purchase agreement”). In accordance with Paragraph 31 of the purchase agreement, it merges with the deed upon closing except for certain items in the agreement which survive closing. Those items are included in paragraph 47 of the agreement (access) and paragraph 50 (basement space). In accordance with paragraph 50 seller is to obtain approximately 360 square feet of the basement and convert it to common space. Drawings attached to the purchase agreement as exhibits H, I, J and K depict the area to be converted to common element space. This space comprises area C–F, 1–2 and E–F, 5–6 of the plan. It is further identified by a circle on exhibit H, I and K.
On April 21, 2005 the deal was closed. Plaintiff received a deed for his portion of the premises. Concurrent with the closing and to induce plaintiff to close on the closing date, the parties entered into an “access agreement” for the portion of the space being acquired by plaintiff. Plaintiff was to “cooperate and assist defendant in obtaining access to the unit from the tenants thereof for the sole purpose of performing any demolition, construction and other work in the unit as may be required by the plan”. (see Plaintiff's 6 and 7 in evidence deed and access agreement).
Paragraph 6 of the access agreement states “notwithstanding anything contained herein, if in connection with granting of any access to the unit by any tenant thereof or the performance of any work by the seller (a) purchaser's rights in respect of the unit would be diminished or impaired in any manner .... or (b) purchaser's obligations or liabilities would be increased, in each case whether pursuant to any lease for space in the unit or otherwise, then prior to commencement of any work and as a condition thereto, seller, purchaser and any tenant of the unit affected by the work shall enter into a mutually satisfactory tri-parte agreement with respect to each parties rights, duties and obligations in connection with the work ...”
There were two tenants in plaintiff's units at the time of closing, The Men's Warehouse occupied the first floor and “David Z” occupied the basement space. Defendant entered into a tri-parte agreement with plaintiff and The Men's Warehouse for work to be done in the space occupied by that tenant (see plaintiff's 8 in evidence). Defendant did not enter into a tri-parte agreement for work to be done in premises occupied by “David Z”. Instead it entered into a bilateral access agreement with “David Z” in May of 2006 (See Plaintiff's 18 in evidence). This bilateral agreement was in complete violation of the access agreement dated April 21, 2005 made with the intent of inducing plaintiff to close on the closing date of April 21, 2005.
In February 2007 plaintiff and defendant entered into a “license and indemnification agreement” for use of the basement space as “storage/staging area in connection with ongoing construction in the building ....“ attached to this agreement is a diagram with a cross-hatched area and an arrow leading to the underlined words “Ladies Miles Inc., space”, depicting the space to be used by defendant. (see Plaintiff's 10 in evidence). Defendant obtained use of the space and instead of using it for the purpose outlined in the “license and indemnification agreement”, installed electrical conduits and ducts essentially rendering the space useless for plaintiff's intended purpose (see Plaintiff's 13 in evidence).
Plaintiff presented the testimony of Albert Laboz who stated that plaintiff intended to use the basement space for retail, that he first learned about the installation of the ducts in the summer of 2007 when he gave the space to a broker to lease and the broker told him that there were ducts cutting through the space. The ducts and pipes installed by defendant cut across the premises and cut the ceiling height, making it impossible to use the space as retail space (see plaintiff's 11A–C, photographs of ducts, pipes and drains). Plaintiff can only use about 7,000 square feet of the space because 3,000 square feet of the space is useless due to the duct work.
On cross examination Mr. Laboz admitted receiving a copy of the offering plan and a floor plan of the space he was purchasing. He admitted he didn't review any other plans because he only cared about the space he was getting and nothing else. He doesn't know if what he complains of now was part of the plans and specifications, or if it was changed because he didn't have anyone review the plans. He doesn't remember approving any plans at the time of closing. In a conversation he had with Miki Naftali, one of defendant's representatives, he was told that defendant needed access to the space to put up piping and do structural work.
Defendant presented the testimony of Yehuda Mor, the project manager at the property. Mr.Mor laid the foundation to admit defendant's A, B, C, and D in evidence. Defendant's A is the offering plan which he helped compose along with the attorney. Defendant's B is a set of architectural plans containing mechanical, electrical and plumbing drawings. The mechanical plan shows the HVAC, heating and cooling systems for the building. He stated that the HVAC was done in the early stages of construction because it affects every aspect of the architectural design. These drawings were prepared before February 2005, before the signing of the purchase agreement. After the plans were deposited with the Department of Buildings the plans could be amended and the drawing would reflect the amendment by depicting a delta with a number inside and a bubble cloud to show the area amended. He stated that the area depicting the ducts was never changed.
On cross examination Mr. Mor stated that the drawings could have been changed after the contract was signed, but that the ducts could not because there was a space constraint, where they were placed is the only location they could have been placed. He admitted that the plans in evidence were amended and were approved by the Department of Buildings on December 15, 2005.
The exhibit in evidence as Defendant's B–1 is a set of architectural plans (cellar mechanical M–101). These plan shows the duct work in the basement space. It contains amendments to the plans around the duct work and is dated May 23, 2005. According to Mr. Mor these plans were drafted before signing of the purchase agreement and were available for plaintiff to review along with the offering plan. Mr. Laboz could not say that he was not given a copy of these plans or that they were not available for his review. In addition, there was a proposed tri-parte agreement between plaintiff, defendant and “David Z” which was not signed (see plaintiff's 35 in evidence). This agreement details the scope of the work to be carried out in the basement space. During each phase of construction in the basement, part of the work includes “the installation of power conduits, piping, duct work and HVAC piping.” This is the precise item of contention between the parties and of which plaintiff claims to have no notice until the summer of 2007.
Finally, in July 2005 plaintiff sent a letter to the defendant regarding the access agreement of April 21, 2005, which plaintiff calls the “existing license agreement,” and the license agreement between plaintiff, defendant and The Men's Warehouse, which plaintiff calls the “new license agreement”. This letter states in relevant part..... “Further, by executing this letter in the space provided below, please confirm that the location and quantity of the permanently installed pipes and duct work in the approved plans referenced in the New Access Agreement does not vary from the location and quantity of same agreed to at the closing and found in the closing documents upon the purchase by Olympic from LMI of the Commercial Unit at the O'Neill Condominium ...” (see Defendant's F in evidence).
Plaintiff was aware that there would be HVAC ducts, electrical conduits and other pipes running through the basement space in the premises previously occupied by “David Z”. Plaintiff was aware of this from a reading of the plans and specifications, from discussions with representatives of the defendants, from the unsigned tri-parte agreement between plaintiff, defendant and David Z, and from its own document to the defendant in July 2005. Defendant's F in evidence is also proof that the installation of pipes and ductwork was approved by plaintiff when it approved the plans.
LEGAL ANALYSIS
The essence of trespass is the invasion of a person's interest in the exclusive possession of land (Ward v. City of New York, 15 AD3d 392, 789 N.Y.S.2d 539;Weinberg v. Lombardi, 217 A.D.2d 579, 629 N.Y.S.2d 280). It is an intentional entry onto the land of another without justification or permission (Spellburg v. South Bay Realty, LLC, 49 AD3d 1001, 854 N.Y. S.2d 563). Where the act of a wrongdoer involves a course of action which is a direct invasion of the rights of another, such conduct is regarded as a trespass of a continuing character ( NY Jur Trespass § 16; 509 Sixth Ave. Corp., v. New York City Transit Authority, 15 N.Y.2d 48, 255 N.Y.S.2d 48, 203 N.E.2d 486 [1964];Wehlau v. Town of Cortlandt, 48 A.D.2d 901, 369 N.Y.S.2d 497), as such, the installation on plaintiff's property of utility lines for the benefit of an adjoining landowner constitutes a trespass (Tusa v. Cablevision, 262 A.D.2d 306, 691 N.Y.S.2d 105).
The installation on plaintiff's property of pipes, electric conduits and ducts for the benefit of adjoining condominium unit owners constitutes a trespass of a continuing nature and is actionable.
A trespass action cannot be maintained where the purported trespasser has a right of access to the premises. As such no action lies where defendant's entry is pursuant to a court order (Iovinella v. Sherrif of Schenectady County, 67 A.D.2d 1037, 413 N.Y.S.2d 497), where the purported trespasser possesses an easement over the land (Curwin v. Verizon, 35 AD3d 645, 827 N.Y.S.2d 256;Mangusi v. Mount Pleasant, 19 AD3d 656, 799 N.Y.S.2d 67;Kaplan v.. Lynbrook, 12 AD3d 410, 784 N.Y.S.2d 586), or the purported trespasser enters pursuant to a license (Rager v. McCloskey, 305 N.Y. 75, 111NE 214;Wheelock v. Noonan, 108 NY179, 15 NE 67).
The evidence shows that Although Defendant invaded Plaintiff's interest in the exclusive possession of the property, that invasion was done with plaintiff's permission. Plaintiff granted access to defendant to perform work on the premises, defendant provided plaintiff with copies of the plans and specifications for the work, those plans and specifications were approved by plaintiff and the work was carried out in accordance with those plans and specifications. Plaintiff cannot now claim that it was unaware that there would be pipes, electric conduits and HVAC ducts placed in the property.
Plaintiff is the owner of at least thirty properties in the City of New York. Its Principals are sophisticated businessmen who have assembled a team of lawyers, architects and project managers to assist them in the Real Estate business. They cannot now allege surprise. Any surprise is due to their failure to exercise ordinary care and conduct an independent investigation of the risks. They had the means to discover the nature and extent of the work contemplated in the premises and did nothing to safeguard their interests ( see Global Minerals and Metals Corp., v. Holmes, 35 AD3d 93, 824 N.Y.S.2d 210;Ittelson v. Lombardi, 193 A.D.2d 374, 596 N.Y.S.2d 817;1166 EJM LLC v. Marsh & McLennan Companies, Inc., 50 AD3d 424, 855 N.Y.S.2d 479;CIBC Bank & Trust Co., Ltd., v. Credit Lyonnais, 270 A.D.2d 138, 704 N.Y.S.2d 574).
CONCLUSION
Plaintiff cannot allege that it did not have knowledge of the work or that it did not consent to the work. Defendant had a right of access to the premises and the work was done with plaintiff's knowledge and consent.
Accordingly, for the foregoing stated reasons the decision and judgment of this court is in favor of the defendant, the case is dismissed. The clerk shall enter an order dismissing this case.
This constitutes the decision and judgment of this court.