Opinion
12201 Index No. 154642/17 Case No. 2019-5576
10-27-2020
Justin THEROUX, Plaintiff–Respondent, v. Norman J. RESNICOW, et al., Defendants–Appellants, 71 Washington Place Owners, Inc., et al., Nominal Defendants.
Peter M. Levine, New York, for appellants. Pryor Cashman LLP, New York (Eric D. Sherman of counsel), for respondent
Peter M. Levine, New York, for appellants.
Pryor Cashman LLP, New York (Eric D. Sherman of counsel), for respondent
Gische, J.P., Oing, Scarpulla, Mendez, JJ.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about June 25, 2019, which, to the extent appealed from as limited by the briefs, denied defendants Norman J. Resnicow and Barbara Resnicow's motion for summary judgment declaring, upon their counterclaim, the legal boundary between the parties' portions of the roof terrace of their building to be in accordance with their contentions, and granted plaintiff's motion for summary judgment on his trespass claim and declaring the legal boundary to be in accordance with his contentions, unanimously modified, on the law, solely to declare in plaintiff's favor on defendants' counterclaim, and, as so modified, affirmed, with costs.
The court correctly determined that the language of the cooperative offering plan describing the boundary between plaintiff's and defendants' portions of the roof terrace was ambiguous (see Ellington v. EMI Music, Inc., 24 N.Y.3d 239, 244, 997 N.Y.S.2d 339, 21 N.E.3d 1000 [2014] ). As used in the offering plan, the terms "stair" and "stairs" are susceptible to at least two reasonable interpretations, and the offering plan otherwise does not disclose the parties' intent (see id. ).
The court properly considered extrinsic evidence to resolve the ambiguity (see Chen v. Yan, 109 A.D.3d 727, 729, 971 N.Y.S.2d 519 [1st Dept. 2013] ). The extrinsic evidence presented supports plaintiff's interpretation of the offering plan; defendants identified no extrinsic evidence that supports their interpretation (see Nova Cas. Co. v. Peter Thomas Roth Labs, LLC, 178 A.D.3d 468, 111 N.Y.S.3d 535 [1st Dept. 2019] ; 1375 Equities Corp. v. Buildgreen Solutions, LLC, 120 A.D.3d 783, 783, 992 N.Y.S.2d 288 [2d Dept. 2014] ).
The record demonstrates conclusively that defendants are liable for trespass (see generally Marone v. Kally, 109 A.D.3d 880, 882–83, 971 N.Y.S.2d 324 [2d Dept. 2013], lv denied 24 N.Y.3d 911, 2014 WL 7152294 [2014] ). In addition to placing and maintaining a line of bricks on plaintiff's property, defendants do not dispute that Norman J. Resnicow entered onto plaintiff's property on multiple occasions without permission to do so. Resnicow's entries onto plaintiff's property to take measurements, move an item on plaintiff's property, take photographs, and confront workers were not necessary to abate a nuisance or address an imminent health hazard (see Courtney v. 18th & 8th LLC, 145 A.D.3d 471, 472, 43 N.Y.S.3d 24 [1st Dept. 2016], lv dismissed 29 N.Y.3d 1045, 56 N.Y.S.3d 506, 78 N.E.3d 1191 [2017] ).
We have considered defendants' remaining arguments and find them unavailing.