Opinion
19496/07.
August 19, 2009.
The following papers numbered 1 to 23 read on this motion by the defendants CN Properties, Inc. (CN), Nicholas Cola, Albert Rodriguez and Alco Builders, Inc. (Alco) for partial summary judgment dismissing the first, third and fourth causes of action, all causes of action against defendants Cola and Rodriguez individually, and all claims for punitive damages; and a separate motion by defendant/third-party defendant AR Concrete Corp. (AR) (1) for partial summary judgment dismissing the first, second and fifth causes of action insofar as they seek punitive damages, and plaintiffs' claim in the complaint for attorneys' fees, (2) joining in co-defendants' motion for summary judgment dismissing the first, third and fourth causes of action, and (3) for judgment over against CN and Alco on its first, second and third cross claims.
PAPERS NUMBERED
Notice of Motion/Affid(s)-Exhibits................. 1 — 8 Answering Affidavits-Exhibits...................... 9 — 18 Reply Affidavits................................... 19 — 23Upon the foregoing papers it is ordered that the motions are consolidated for the purpose of disposition and are determined as follows:
Initially, the court notes that a second amended verified complaint adding third-party defendant AR as a direct defendant pursuant to CPLR § 1009 was filed by plaintiffs on May 22, 2008. Therefore, the caption set forth in the second amended complaint is the only proper caption for this action. The parties are directed to only use only such caption on any future submissions to the court.
Plaintiffs Ramsarup and plaintiffs Rodriguez, respectively, own homes on properties adjoining opposite sides of a parcel owned by Alco where defendants were engaged in the demolition of two houses and the construction of five new homes on the same site in Queens. AR was hired by Alco and CN to perform the excavation work and install the footings and concrete foundations for the proposed homes. During the construction, defendants entered upon and performed excavation work on plaintiffs' properties which both sustained damage. In addition, concrete foundation footings for a new building encroached onto the Ramsarup property by approximately four inches. In this action, plaintiffs have alleged causes of action for trespass, negligence, fraud, an injunction, and nuisance. In connection with these causes of action for money damages and injunctive relief, plaintiffs also seek an award of punitive damages and attorneys' fees.
The proponent of a motion for summary judgment has the burden of submitting evidence in admissible form sufficient to demonstrate the absence of any material issues of fact and establish the right to judgment as a matter of law (CPLR § 3212 [b]; See, Smalls v AJI Indus.,Inc., 10 NY3d 733; Giuffrida v Citibank Corp., 100 NY2d 72, 81; Ayotte v Gervasio, 81 NY2d 1062). The failure to make such a prima facie showing requires the denial of the motion, regardless of the sufficiency of the opposing papers ( See , Smalls, 10 NY3d at 735;Ayotte, 81 NY2d at 1063). Once the necessary showing is made, however, the burden shifts to the opposing party to produce proof in admissible form sufficient to establish the existence of a triable issue of fact (See, Giuffrida, 100 NY2d at 81; Alvarez v Prospect Hosp., 68 NY2d 320, 324).
The branch of the motion by defendants CN, Alco, Rodriguez and Cola that is for summary judgment dismissing the complaint against the individual defendants on the ground that they cannot be held personally liable for the acts of CN and Alco is denied. An agreement between Cola and Rodriguez dated March 26, 2004, established, among other things, that the assets of CN and Alco were to be owned by Cola and Rodriguez in equal parts and that all profits and losses of the companies were to be shared equally by the individual defendants. This agreement raises an issue of fact as to the capacity in which their acts with regard to the construction project were performed (CPLR § 3212[b]).
Defendants' description of this agreement, in reply papers, as a "standard shareholder type agreement" for profit and loss sharing is belied both by the provision for the division of assets and by the statement in the agreement that "Cola is the sole stockholder, director and officer" of CN and Alco. Cola's status as president and owner of the corporations and the status of Rodriguez as "an agent of Alco and/or CN" are also averred to in these parties' respective affidavits in support of the motion. Moreover, a corporate officer or agent may be held personally liable for the conduct of the corporation if the officer or agent commits or participates in the commission of a tort in the furtherance of the corporation's business (See, Aguirre v Paul, 54 AD3d 302; Sisino v Island Motocross of New York, Inc., 41 AD3d 462;Huggins v Parkset Plumbing Supply, 7 AD3d 672 ). The individual defendants have failed to make a prima facie showing that they did not participate in the alleged wrongful conduct herein (See, Aquirre, 54 AD3d at 304).
Defendants' motions for summary judgment dismissing the first cause of action for trespass is denied. Plaintiffs' affidavits raise issues of fact as to whether, as alleged by defendants, they consented to allow defendants to enter upon and perform work on their property (CPLR § 3212 [b]). The excerpts of deposition testimony submitted by defendants are insufficient to demonstrate as a matter of law that plaintiffs Rodriguez authorized their son to execute the document relied upon by defendants purportedly permitting defendants to encroach on the Rodriguez's property. In any event, said document related only to entry onto the Rodriguez property to repair the driveway, and cannot be viewed as written consent for the prior actions of defendants alleged herein.
Nor is there any merit to defendants' contention that plaintiffs cannot show any damages from the alleged trespass. Contrary to defendants' contention, an occupation of the subject property is not necessary to yield damages sufficient to sustain a trespass cause of action (See,e.g., Schwegel v Chiaramonte, 4 AD3d 519, 520; Zimmerman v Carmack, 292 AD2d 601). In addition, even in the absence of actual damage to the owner's possessory interest, nominal damages are always available from a trespass (See, Burger v Singh, 28 AD3d 695, 698;Shiftman v Empire Blue Cross and Blue Shield, 256 AD2d 131; Ligo v Gerould, 244 AD2d 852).
Upon proof of actual injury to their real property, proximately caused by defendants' trespass, plaintiffs would also be entitled to compensatory damages, measured by the cost of repair or restoration or by the difference between the value of the land before and after the harm (See, 104 NY Jur 2d, Trespass § 40). Furthermore, an owner is entitled to seek an injunction directing the removal of a structure encroaching on the owner's land (RPAPL § 871). Here, defendants have not submitted proof in admissible form refuting the allegations of encroachments or demonstrating as a matter of law that, upon a balancing of all of the circumstances, any encroachment was so de minimis as to preclude injunctive relief or damages in lieu thereof (See, Brown v Nelson, 55 AD3d 317; cf., Matter of Zhuang Li Cai v Uddin, 58 AD3d 746; Generalow v Steinberger, 131 AD2d 634).
The defendants' motions seeking dismissal of the third and fourth causes of action for fraud and an injunction are granted. The fraud cause of action is insufficient as a matter of law inasmuch as the complaint does not allege that plaintiffs relied upon a misrepresentation by defendants to their detriment, and nothing in the record provided shows that plaintiffs did so (See, Vermeer Owners, Inc. v Guterman, 78 NY2d 1114; Nationscredit Fin. Servs. Corp. v Turcios, 55 AD3d 806;Maisano v Beckoff, 2 AD3d 412).
The cause of action for a permanent injunction seeks injunctive relief beyond the removal of the encroachments demanded in conjunction with the causes of action for trespass, negligence and nuisance. The separate cause of action is to enjoin all demolition, construction and excavation on the lots owned by Alco adjoining plaintiffs' properties. Such relief is not warranted not only because plaintiffs' complaints can be addressed with more narrow injunctive relief targeting work performed on or encroaching on their properties, but also because the construction project on those lots is subject to a full "stop work" order issued by the Department of Buildings upon revocation of the building permits therefor (See, Brown, 55 AD3d at 318). The disposition with regard to the fourth cause of action is without prejudice to the demands for injunctive relief in the remaining causes of action.
With respect to those branches of defendants motions seeking dismissal of the plaintiffs' punitive damages claims, punitive damages may be recovered for trespass on real property where the trespasser acted with actual malice involving an intentional wrongdoing or where the conduct amounted to a wanton, willful or reckless disregard of a plaintiff's rights (See, Litwin v Town of Huntington, 248 AD2d 361; Ligo, 244 AD2d at 852). Punitive damages are also available for nuisance under similar circumstances (See, Vacca v Valerino, 16 AD3d 1159). In view of the issues of fact as to plaintiffs' consent, it cannot be determined as a matter of law whether the conduct by defendants CN, Alco, Cola and Rodriguez alleged to constitute trespass and nuisance amounted to a willful or reckless disregard of plaintiffs' rights, and their application for summary judgment dismissing the punitive damages claim for trespass and nuisance against these defendants is denied (See,e.g., Massare v DiNardo, 35 AD3d 1157; Fareway Heights, Inc. v Hillock, 300 AD2d 1023, 1025).
However, the branches of the motions for summary judgment dismissing plaintiffs' claims for punitive damages in their negligence causes of action are granted. The cause of action for negligence contained in the complaint arises solely out of the performance of the excavation work and it does not expressly state that the defendants acted grossly or wantonly in this regard. Moreover, the plaintiff failed to adduce any evidence that the performance of the excavation itself evinced such a high degree of moral culpability or utterly malicious conduct as to support a claim for punitive damages (See, Campagnola v Mulholland, 76 NY2d 38, 48; McDougald v Garber, 73 NY2d 246, 254).
The branch of AR's motion to dismiss the punitive damage claims asserted against it is granted. Plaintiffs have failed to raise a triable issue of fact in opposition to AR's prima facie showing that AR did not act with willful or reckless disregard of plaintiffs' rights in entering upon and performing work on plaintiffs' properties at the direction of CN and Alco after being advised by these co-defendants that plaintiffs had consented to the entry and the work.
That branch of AR's motion that is for dismissal of plaintiffs' claim in the complaint for attorneys' fees is granted. Attorneys' fees are not compensable in an action unless an award is authorized by an agreement between the parties or by statute or court rule (See, A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5; Mighty Midgets, Inc. v Centennial Ins. Co., 47 NY2d 12, 21-22). To the extent plaintiffs may seek attorneys' fees pursuant to CPLR § 3123 [c] or Rules of the Chief Administrator (22 NYCRR) § 130-1.1 as sanctions for conduct during the litigation, such applications should be made by motion (CPLR § 3123 [c]; Rules of Chief Administrator [ 22 NYCRR] § 130-1.1[d]).
The part of the motion by AR that is for judgment over against CN and Alco on its first, second and third cross claims pursuant to the terms of a stipulation dated February 11, 2009, is denied as premature inasmuch as the particular conduct on which any liability against AR in the main action would be based is undetermined (See generally, George v Marshalls of MA, Inc., 61 AD3d 925, 930; Alexander v New York City Tr., 34 AD3d 312, 314).