Matter of McLennon v Service 31 Corp.
Annotate this CaseDecided on August 26, 2005
Supreme Court, Kings County
In the Matter of the Petition of VERNON McLENNON and DEBRA McLENNON, Petitioners, for a Temporary Restraining Order and an Order Compelling Preaction Disclosure Pursuant to CPLR 3102
against
SERVICE 31 CORP. et al., Respondents.
19081/05
Wayne P. Saitta, J.
The petitioners having moved this Court for an order for pre-action disclosure and for a temporary restraining order baring respondents from any excavation or construction at 669 East 21st Street, Brooklyn New York, and the motion therefor having regularly coming on to be heard before this Court; NOW, on reading and filing the order to show cause, dated the 22nd day of June, 2005, with proof of due service thereof, the affirmation of Thomas Wilson Esq. , attorney for the petitioners, sworn to on the 20th day of June, 2005, in support thereof, the affidavit of petitioner Vernon McLennon, sworn to on the 20th day of June, 2005, in support thereof and exhibits annexed thereto, the affirmation in opposition of David Stern Esq., attorney for respondent Service 31 Corp. and successor in interest 669 East 21 LLC., dated July 11 2005, the attached Affidavits in Opposition of Richard Ohana, dated July 11 2005, and Jonathan Einhorn dated July 11, 2005, and exhibits annexed thereto and the Affirmation in Further Support of Injunctive Relief of Thomas Wilson Esq. dated July 12, 2005, and a hearing having been held on July 27th through 29th , 2005 , and a further hearing having been held at the site at 669 East 21st St. on August 3 2005, and upon all the proceedings heretofore had herein, and after due deliberation;
NOW, on motion of Thomas Wilson Esq., attorney for the petitioners, the motion for a preliminary injunction is granted to the extent set forth below.
Petitioners are the owners of a detached three family house at 665 East 21st Street, Brooklyn New York. Respondent Service 31 Corp. was the last recorded owner of the adjoining premises, 669 East 21st Brooklyn. Service 31 Corp. transfered title to 669 East 21 LLC a limited liability company whose members were principles of Service 31 Corp. 669 East 21 LLC, and its principle members Jonathan and Joshau Einhorn appeared in this proceeding. [*2]
In May of 2004 respondents filed plans with the New York City Department of Buildings to construct a 4 story, 8 unit building on the site of 669 East 21st St.. The plans provided that the building would be built to the side lot line between 665 and 669 East 21st Street.
Respondents began excavation of the property in May of 2005. Respondent began construction of the foundation in June of 2005.
Petitioners began this proceeding for pre-action discovery and for a preliminary injunction enjoining excavation and construction at 669 East 21st Street, by Order to Show Cause dated June 22 2005. That Order to Show Cause contained a temporary restraining order enjoining construction and demolition at the 669 E. 21st Street site.
Subsequently petitioners filed a summons and complaint ( Index No. 22890/05) against Josh Einhorn, Jonathan Einhorn, Jacob Dekelbaum, as principals of Service 31 Corp.; 669 East 21 LLC, Richard Ohana the general contractor of the job, and John Notarnicola, the excavating subcontractor. In that action petitioners seek damages and injunctive relief for the violation of the easement and trespass that are the subjects of this motion.
The Court held a hearing on petitioners request for a preliminary injunction on July 27 - 30th on the issues of whether petitioners had an easement over any part of respondents' property and on whether respondents had permission to excavate on petitioners' property or underpin their building.After completion of the hearing on July 30th the court reserved decision and extended the TRO pending determination of this motion. The Court modified the TRO to permit Repsondents to resume construction on 699 E. 21st Street but enjoined Repsondents from installing any further underpinning, doing any work or entering upon the lot of 665 E. 21st St.
On August 3rd , upon the complaint of petitioners, that Repsondents were violating the TRO , the court conducted an inspection of the site in the presence of both counsel and parties. Upon the inspection the court found that Repsondents resumed excavating on the lot of 669 E. 21st St in such a manner as to cause part of the ground on the lot of 665 E. 21 St. to fall away and expose a portion of the foundation of petitioners' house.
Petitioners seek the preliminary injunction on two grounds. First, that there is a four foot walkway abutting the south side of their building which straddles the two lots, which respondents' new building will reduce by a foot and a half. Petitioners claim an easement over this foot and a half, which lies on respondents property. Second, petitioners claim that respondents have excavated on the portion of their property between their house on the side lot line and have installed underpinning under their building, without petitioners' permission.
Respondents' position is that petitioners have no easement over their property and that respondents had permission to excavate on petitioners' property and underpin petitioners' building.
Petitioners also sought pre-action disclosure, although that part of the motion is moot as petitioners subsequently filed a summons and complaint against respondents and their successors in interest and principals, complaining of the encroachment on the property and the loss of easement. Any disclosure should properly be had through the new action.
To obtain a preliminary injunction the petitioners must show: 1) the likelihood of ultimate success on the merits; 2) irreparable injury and no adequate remedy at law; 3) that the equities of granting the injunction as opposed to not granting it weigh in the movants' favor.
[*3]Easement Alleged over Repsondents' Property
Petitioners failed to demonstrate that they are likely to succeed in their claims of an easement. Petitioners assert that there was a shared concrete walkway abutting the south side of their building that was four feet wide, that 2 ½ feet of the walkway was on their property and 1 ½ feet were on respondents' property. They claim that they had an easement over the 1 ½ of the walkway that was on respondents' property. The survey introduced into evidence at the hearing established that petitioner's house was 2' 6" from the lot line with 669 E. 21st Street. Although there was conflicting testimony at the hearing as to the width of the walkway, it was measured during the hearing held at the site and found to be 48" in width. Thus 1 ½ of the walkway was on respondents' property.
Petitioners however, adduced no evidence of an easement by express grant. Nor did they show a likelihood of establishing an easement of necessity pursuant to RPAPL 335-a, an easement by implication, or an easement by adverse possession.
An easement by necessity is only available where the lot in question does not abut a public street and the easement is necessary for access to the lot.. Here Petitioners' lot is clearly bounded and accessible by East 21 Street, a public street.
In order to establish an easement by implication based on pre-existing use, Petitioners must demonstrate: 1) unity and subsequent separation of title; 2) the easement existed at the time of separation of title in an obvious and continuous manner; and 3) the easement must be necessary at the time of the conveyance. Leonard v Igoe 178 Misc 2d 385, 678 NYS2d 842; Four S Realty Co. v Dynko 210 AD2d 622, 619 NYS2d 855. Here Petitioners presented no evidence on any of the above three elements. While Petitioners presented some testimony of past use of the portion of the walkway which was on the adjoining lot, there was no evidence of how long the use existed. Further, there was no evidence that the lots were once unified or that the easement existed at the time of any separation of title.
In order to establish an easement by adverse possession or prescription, Petitioners must show that their use of the walkway was open, notorious, hostile and continuous for at least ten years. Doe v Axelrod 73 NY2d 748 (1988). Petitioners have owned the building since only 1998 so their use has not been for the full prescriptive period of ten years.
As petitioners have not shown a likelihood of success of their claims of an easement, a preliminary injunction can not be granted based on the encroachment of the alleged easement.
Underpinning on Petitioners' Property
Petitioners also base their request for a preliminary injunction on their claim the Respondents have unlawfully trespassed on their lot by excavating under the foundation of their house, and underpinned the foundation with concrete piers.
It is uncontested that Respondents did place concrete piers on Petitioners' property, under the foundation of the building. It is also not contested that the underpinning was included in the scope of work approved by the New York City Department of Buildings.
The underpinning of Petitioners' house was done because the foundation for Respondents' new building was deeper than the foundation of Petitioners' house. Without the underpinning the new deeper foundation would have undermined the structural integrity of the foundation of Petitioners' house.
Petitioners state that they never gave Respondents permission to enter upon their lot or to [*4]install the concrete piers on their lot. Respondents claimed both that Petitioners expressly agreed to the underpinning and also that their agreement can be implied by their failure to object after being given notice of the construction.
Respondents did not produce any agreement in which Petitioners agreed to allow the underpinning to be installed. Respondents introduced two letters sent to petitioners to support their assertions that Petitioners agreed to the underpinning. The first letter, from Tri-Tower Mason Specialty Corp. dated May 24 2005, states that Tri-Tower plans to underpin his house and describes the work and anticipated schedule. Although it refers to a "verbal conversation" between petitioner Vernon McLennon and John Notarnicola it does not indicate the content of that conversation.
The second letter dated June 10 2005, is from David Shteierman, of DJ Associates, the architect of the project. It advises petitioners that the proposed construction at 669 East 21st Street requires that his house be underpinned. It further states that because petitioner refused to sign the work approval application for the underpinning, they would file the application under 669 East 21st Street, rather than 665 East 21st St..
It is clear from the contents of both letters that neither evidences an agreement by Petitioners to allow Respondents to install the underpinnings on their lot. The May 24th 2005 simply informs Petitioners that Respondents intend to underpin their house. It contains no reference to any agreement by Petitioners, only to an unspecified conversation. Further, a stop work order for the underpinning was issued by the Department of Buildings on June 3 2005, on the complaint of Petitioners. This complaint by Petitioners undercuts the claim that the May 24th letter either constitutes or evidences an agreement.
The June 10th letter by Respondents' architect explicitly acknowledges that Petitioners refused to consent to the underpinning.
Respondents also claim that Petitioners' failure to object to a "5 day notice" of the sent to them establishes implied consent. For there to be consent or an agreement there must be a meeting of the minds between the parties. The mere failure to respond to a unilateral notice by Respondents can not without more constitute an agreement. It is especially so in this case, as the notice did not include a description of the work and significantly, did not state that the Respondents intended to install concrete piers on Petitioners' property. Further, in this case, the notice gave incorrect location of where the work was to be done. It listed the site of the work as 669 East 29th St, rather than East 21st St.
Additionally , than fact that the Department of Buildings issued a permit for the underpinning is immaterial to Petitioners' claim of trespass. The Department of Buildings has no authority to grant Respondents permission to install underpinnings on Petitioners' property or even to enter on Petitioners' property absent petitioners' consent..
The legislature has vested the power to allow an owner to enter another's property in the Supreme Courts of the State, not the Department of Buildings. Where a owner can not get permission from an adjoining property owner to enter on to its land and such entry is necessary to make repairs on their own property, they may petition the court pursuant to RPAPL 881 for license to enter.
However, RPAPL 881 only provides for temporary license to enter another's property to perform work on one's own property. It does not allow for an owner to encroach on the adjoining [*5]property. Broadway Enterprises v Lum 16 AD3d 413, 790 NYS2d 402 ; Foceri v Fazio, 61 Misc 2d 606, 306 NYS2d 1016. In its 2005 decision Broadway Enterprises v Lum supra, the Appellate Division Second Department specifically held that underpinning an adjoining property constituted a permanent encroachment of that property and thus a license to underpin an adjoining property could not be granted pursuant to a RPAPL 881 proceeding.
Since Respondents can not underpin Petitioners' house without their permission, and permission was not granted, petitioners have demonstrated a likelihood of success on their trespass claim as it relates to the underpinning, and are entitled to injunctive relief.
It is not practical however, to require the removal of the underpinning already installed as there is no way to remove the underpinning without destabilizing the building. Therefore, the court will enjoin Respondents from placing any further underpinning under Petitioners' house or creating any further encroachments on petitioner's property.
The inspection of the site revealed that Respondents had installed underpinning under the south side of Petitioners' property from the rear of that building up to a point 26' 3'' from the front lot line of the property. The new foundation wall for Respondents new building has been partially completed up to a point some 35' from the front lot line. Since the Respondents can not safely continue construction of their foundation beyond the point where Petitioners' house has been underpinned, and in light of the fact that Respondents exposed a further part of petitioners' foundation after the TRO was modified, the court will enjoin the Respondents from any further construction of the foundation wall of the new building.
WHEREFORE, Richard Ohana, John Notarnicola, Joshau Einhorn, Jonathan Einhorn, Jacob Deckelbaum, Service 31 Corp., 669 East 21 LLC their members, principals, assigns, agents, employees, contractors, or any one acting under them, are enjoined, pending disposition of the matter of McLennon et al., v 665 East 21 LLC et ano, Index No. 22890/05; from doing any further demolition, underpinning or construction at 665 East 21st Street Brooklyn New York; from entering on the lot known as 665 East 21st Street, Brooklyn, New York; and from constructing any further portion of the foundation for the new building at 669 East 21 St. Brooklyn New York, within 26 feet 3 inches of the front lot line. The Court shall retain continuing jurisdiction over this proceeding. This constitutes the decision and order of the Court.
ENTER _______________
J.S.C.
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