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197 E. 76th St., LLC v 1330 3rd Ave. Corp.
2012 NY Slip Op 30009(U)
January 4, 2012
Supreme Court, New York County
Docket Number: 113163-2009
Judge: Judith J. Gische
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197 EAST 76 STREET
MOTION D A T E
MOTION SEQ. NO.
1330 3RD AVE. CORP.
MOTION CAL. NO.
SEQUENCE NUMBER 004
Upon the foregoing papers, it is ordere
that this motion
DO N O T POST
SUBMIT ORDER/ JUDG.
JAN 05 2012
Check if appropriate:
this motion to/for
n SETTLE ORDER/ JUDG.
Hon. Judith J. Gische
This action involves a dispute between adjacent owners of real property. Plaintiff
197 East 76"' Street, LLC is the owner of the building located at 197 East 76'" Street,
New York, New York ("I 97") whereas defendant 1330 3rdAvenue Corp. is the owner of
the building located at 199 East 76thStreet a/k/a 1330 3'd Avenue (f'l99")'.
In its complaint, 197 seeks a declaratory judgment regarding a boiler flue vent,
chimney2 and three fireplace vents or metal flues presently anchored to its easterly wall.
197 also seeks a permanent injunction against the defendant, enjoining it from
'Although the parties identify themselves as "East 76'"" (plaintiff) and "3rdAve" (defendant)
in their papers, the court adheres to its prior identification of them to maintain consistency among
the court's decisions.
Throughout the parties' papers they use the terms "chimney" and boiler vent flues
interchangeably although technically they are not the same thing.
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destroying, etc that chimney and the flues.
I 9 9 has answered the complaint and asserted counterclaims for a permanent
injunction prohibiting 197‘s continued trespass (Ist CC) and requiring 197 to remove a
new wall it built a few years ago and appurtenant metal flues (2ndCC). Alternatively, 199
seeks monetary damages as compensation for 199’s loss/destruction of property rights
In connection with a prior motion for a preliminary injunction, the court ordered
that 199, its agent and assigns not remove the chimney or flues pending further order of
the court (Order, Gische J., 1/5/10) (“prior order”).
I 9 9 now moves for summary judgment in its favor and 197 is opposed. Since
issue has been joined, this pre-note of issue motion may be decided on the merits
(CPLR 5 3212; Brill v. Citv of New York, 2 NY3d 648 ). The reader is presumed to
be familiar with the court’s prior order.
The following facts are undisputed, unrefuted or otherwise established by this
Facts and Arguments Presented
197 and 199 East 76thStreet are buildings that are adjacent to one another on the
north side of 76‘hStreet in Manhattan near Third Avenue. There was once a 5 ’/2 foot
alleyway between the two buildings and that alleyway was part of defendant’s property.
The footprint of t h e building on 199’s property has been enlargened and now the
buildings are flush against one another. Thus, there is no longer an alleyway and
anything that was once in the alleyway has been encapsulated by 199 when it expanded
its building. Some of t h e encapsulation occurred after this action was brought and the
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court granted 197 a preliminary injunction. The preliminary injunction, however, only
'prevented removal of the metal flues on 197's easterly wall.,
At one time 195, 7 97 and I 9 9 were owned by a common owner. Later, when the
owner sold off buildings, he entered into certain agreements with the new owners of 195
and 199. The agreement with I99 was that 197 and 199 would share heating costs
since the two buildings shared one boiler. The costs were shared 40% by 197, whereas
199 would pay 60% of those costs. This cost sharing agreement, made May 19, 1975
("1975 agreement"), was reduced to writing and recorded in the books and records of
the clerk of New York County, The agreement expressly provides that It was to remain
in effect until April 30, 1980, unless 199 sooner obtained its own heating system:
In the event that 181 E. 78"' St. Corporation, is successors
or assigns installs at its sole cost and expense its own
heating system and hot water supply to take care of its
own premises at 799 East 76thStreet and properly seals
all lines of heat and hot water coming from 197 to I99
East 76'h Street, then in that event this agreement shall
terminate and termination date shall be effective on the
date that the new heating system installed for 199 East
76"' Street is working and operating. On that date all fuel
bills shall be pro-rated and thereafter obligations to pay
60% shall terminate.
Although the 1975 agreement ended and 199 no longer derives a benefit from
197's boiler, 197's boiler is still using the chimney that emanates from defendant's cellar
and transitions into t h e metal chimney flue vent attached to the easterly wall of 197's
Also on the easterly wall of 197 are three fireplace flues. The fireplace flues were
erected in 2003 by 197 without defendant's permission. At that time, 197 renovated its
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building and apparently installed (or reactivated) wood burning fireplaces that must be
vented. Like the boiler vent flue, the fireplace flues once extended over the old alleyway
between the two buildings. I99 states that it did not previously demand that the new
wall built by 197 and these fireplace flues be removed because they were within a
partially enclosed section of the alleyway and not easily seen. It is unrefuted that none
of these flues (boiler or fireplace) service any of the systems located inside or benefitting
199 or its occupants. Presently, the only visible parts of these boiler and fireplace flues
are on the top floor of 199. 199 is attempting to secure a permanent certificate of
occupancy ( T O ” ) for its newly remodeled building and claims these flues are an
impediment to it doing so. I 9 9 also states it has plans to build on the top floor of its
building and cannot have the flues in that area. Finally, defendant states that the flues
pose a health, fire, and safety hazard and they must be removed for that reason as well.
Previously, defendant was instructed by the court to notify the Department of
Buildings (“DOB”) about the fireplace flues (see prior order). It was unclear whether 199
had shown the fireplace flues in diagrams submitted to DOB. DOB h a s now conducted
an investigation in connection with 199’s application for a CO and issued what is known
as a “residential occupancy checklist.” This checklist identifies “objections” that must be
addressed before DOB will issue a permanent CO. One of the notations on that
checklist is as follows:
Exclude/separate or disconnect boiler smoke pipe 197 E.
76thSt. (adj bldg) from 199 E. 76‘h St. Bldg chimney.
In a reference area to the left of this notation appears the objection code “IM”
which stands for “improperly completed.” Despite that notation, DOB did not issue I 9 9 a
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violation nor are the fireplace flues identified as an objection to I 9 9 obtaining a CO.
I 9 9 has now moved for summary judgment on its counterclaims seeking a
permanent injunction. Defendant contends that I 9 7 must remove the wall it built in
2003, the fireplace flues that were anchored to that wall and the boiler vent flue. 199
also seeks an order requiring 197 to detach its boiler vent flue from ’i99’s chimney. The
metal flues used to extend into the alleyway (approximately 10 inches) and now extend
into the newly expanded building at 199.
Defendant’s architect (“Chopra”) has provided a sworn affidavit. He states that
the illegal fireplace flues present a danger to the health, safety and welfare of the
occupants of both buildings because any damage to the fireplace flues could cause
smoke to back up into both buildings. Chopra also opines that one boiler flue cannot
safely vent two boilers and that it is a violation of the building code to have 197’s boiler
vented through 199’schimney. 199 maintains that the 1975 agreement was an
easement and once it expired, 197 no longer had any right to vent its boiler through
199‘s property and should have made arrangements to separately vent its boiler.
I99 contends that 197 can - and must - vent its wood-burning fireplaces
through its own building but if plaintiff cannot do so, I97 must simply keep them as
decorative, non-functioning fireplaces. Without elaborating, 199 contends that 197 can
also vent its boiler in other ways and that it does not have to use 199’schimney although
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197 does not have its own chimney.
In opposition to defendant’s motion for summary judgment, plaintiff maintains that
it has not had discovery, though demanded, and that it would like to depose 199’s
president, Mr. Ba& 197 does not, however, explain what information Mr. Bari h a s to
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offer or what facts are missing that would allow it to further develop its defenses against
Alternatively, 197 argues that it cannot remove the fireplace flues now that they
have been encapsulated by defendant and that the current situation is of defendant’s
own making. 197’s engineer (“Simoniello”) states that 197 is encumbered on all sides,
except the access point to the public sidewalk. Simoniello states that he inspected the
property and could not see anyplace where a chimney could have existed on 197
property, except for the old alleyway, that no longer exists. He opines that the chimney
adequately serviced both buildings’ boilers for decades and that NYC Mechanical Code
specifically allows for multiple connections to a common vent.
As for the fireplace flues, Simoniello states they are not attached to the chimney
or vented through that structure, as incorrectly stated by 197, but are attached to the
outer wall of 197’s building. Simoniello states that the encapsulated flues are not
dangerous and the fireplaces cannot be vented any other way, but even if they could,
such venting would require partial demolition of t h e units that have fireplaces. He states
further that the “objections” by DOE are not violations and DOB has not issued I99 any
violation for having the chimney hooked up the way it presently is to 197’s boiler.
Simoniello opines that the DOB’s objection could be easily resolved if the defendant
would agree to work with plaintiff to resolve it. Simoniello states that so long as the flues
are properly connected and encapsulated by a fire rated wall, they are not hazardous.
He states that 199 applied for a CO based upon 199’s architect’s certification that the
configuration of the building is safe and, therefore, there is no present hazard in how the
flues are encased.
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A movant seeking summary judgment in its favor must make a prima facie
showing of entitlement to judgment as a matter of law, tendering sufficient evidence to
eliminate any material issues of fact from the case. ” Wineqrad v. New York Univ. Med.
- 64 N.Y.2d 851, 853 (1985). The evidentiary proof tendered, however, must be in
admissible form. Friends of Animals v. Assoc. Fur Manufacturers, 46 N.Y.2d 1065
(1979). Once met, this burden shifts to the opposing party who must then demonstrate
the existence of a triable issue of fact. Alvarez v. Prospect HOSD., N.Y.2d 320, 324
(1986); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980).
Although plaintiff contends defendant’s motion should be denied because
discovery is incomplete, plaintiff has not come forward with anything to suggest that
discovery may lead to relevant evidence that will allow it to better defend against this
motion ( Bailey v. New York Citv Tr. Auth., 270 A.D.2d 156 [I” 20001). A “mere
hope that further disclosure might uncover evidence likely to help [plaintiffs’] case”
provides no basis for postponing summary judgment (Mavsek 8 Moran v. Warburq &
a, A.D.2d 203, 204 [Ist Dept 20011). Therefore, the,motion for summary judgment
is not premature and 197 has demonstrated it has the essential facts needed to oppose
199’s motion for summary judgment on its counterclaims.
The parties’ 1975 agreement set forth the parties’ rights and obligations with
respect to the apportionment of heating and heat related costs for their two buildings.
Once the agreement expired in 1980, I99 was no longer obligated to share in the
heating or maintenance costs of the boiler that existed (and still exists) in the ceilar of
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197. Clearly the 1975 agreement was for the benefit of 199, since it did not have its own
boiler at the time. Thus issue is now whether 197 has to reconfigure how it vents its
boiler or, put differently, whether 197 has some continued right to use the chimney that
emanates from 199's cellar and transitions into the metal chimney flue vent attached to
the wall of 197's building.
'197 has raised the defense of adverse possession and implied easement or
easement by necessity. A party claiming the defense of adverse possession must show
by clear and convincing evidence that the possession was hostile, under a claim of right,
actual, open and notorious, exclusive of any other right and continuous for a period of 10
[Lonqshore v. Hoe1 Pond Landinq, 284 A.D.2d 815 [3'dDept 2001J Iv. den. 97 N.Y.2d
603 ). 199 is, however, the moving party seeking summary judgment in its favor
on its counterclaims. Thus, if 199 does not meet its burden, or 197 raises issues of fact
regarding whether 197 has adversely possessed the area in dispute, 199's motion must
The location of the boiler vent flue alongside the easterly wall of 197 began with
the permission of the owner of 199, since both buildings were jointly owned at that time.
After I 9 9 was sold, 199 allowed the chimney flue to remain in its alley space, despite the
I , ,
expiration of the 1975 agreement calling for shared heating expenses. The 1975
agreement did not address removal of the connections to 199's chimney or of the boiler
vent flue from the location it was at the time of the 1975 agreement. Therefore, I 9 9 has
not proved it is entitled to summary judgment, as a matter of law, requiring the removal
of that connection or the metal boiler flue vents
I l l ,
Even, were the court persuaded that 199 has met its burden of proving the 1975
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agreement was an easement for the metal work and connections involved, not just
sharing of heating expenses, 197 has raised issues of fact that defeat the motion.
Among those issues are whether 197’s possessionluse of the chimney and vent
connection was hostile, under a claim of right, actual, open and notorious, exclusive of
any other right and continuous for a period of 10 years. While 199 claims that it
permitted 197 to keep the connections as they were after 1980, and therefore, 197‘s use
was not “hostile” (see Chatsworth ReaItv 344 LLC v. Hudson Waterfront Co. A, LLC, 309
A.D.2d 567 [ I ” Dept 2003]), this presents a factual dispute that must be resolved before
the court can properly apply the law. There is also the unresolved dispute of whether
197 acquired a prescriptive easement allowing the use of thk chimney, etc. Like the
defense of adverse possession, a prescriptive easement requires that such use be
adverse and hostile (Wade v. Villaqe of Whitehall, 17 A.D.3d 81 3 [3rdDept 20051 Iv den.
5 N.Y.3d 717 ; Rasmussen v. Sqritta, 33 A.D.2d 843 [3rdDept 19691).
,The dispute between the parties’ experts also presents triable issues of fact.
Whereas Chopra, defendant’s expert, opines that 197 can and must ventilate its own
boiler by removing the connections to defendant’s chimney, stating that the present
connections are dangerous, Simoniello disagrees. 197 has provided a section of the
NYC Mechanical Code indicating that a connection can sewe two or more “appliances,”
an apparent reference to boilers (NYC Mechanical Code Chapter 801 et seq) and the
DO6 did not issue any violation regarding the chimney connection. Simoniello has also
raised the issue that 199’schimney has safely serviced both buildings for at least 60
years without any incident and that there is no reason presented by I99 that the
connection can continue to be safely maintained
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Turning to the fireplace flues, it is unrefuted that these flues were installed when
197 renovated its building and either installed new fireplaces or reactivated old fireplaces
! 'i #
that were not working before then. The installation of those flues was admittedly without
197's permission or consent. According to plaintiff, if the fireplaces are not vented, they
cannot be used. Defendant has now, however, encapsulated the fireplace flues by
building around them. In doing so, the fireplace flues are now virtually unreachable,
except by demolishing a part of 197's building and possibly even 199's newly
While arguing that encapsulation of the flues is dangerous, this is exactly what
defendant did, thus contributing, in no small part, to the present situation. Furthermore,
despite Chopra's opinion that encapsulation is dangerous, efendant's architect
apparently certified that the work done at 199 was completed safely and DOB did not
identify the fireplace flues as an objection to the CO or issue any kind of violation to
either owner. Examining these circumstances, defendant has not proved its entitlement
to summary judgment
on its counterclaims, as a matter of law. There are significant
issues of fact that must be resolved before the court can apply the law. Among those
factual issues are whether the fireplace vent flues are safe as they presently are,
whether the fireplaces at 197 can be vented a different way, and whether defendant will
gain a substantial benefit by having these flues removed.
Where the removal or destruction of a building is the object of a permanent
injunction, the court must exercise caution in granting such relief and will generally not
do SO unless there is a substantial benefit to be gained by the party seeking that relief
(Sunrise Plaza Assoc., L.P. v. International Summit Eauitied Corp., 288 AD2d 300 [2nd
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Dept 20011 Iv den, 97 NY2d 612 ; also Pennbus Realties LLC v. H Eiqhth Avenue
Associates, LLC, 29 Misc.3d 1224[A] [Sup Ct., N.Y. Co. 20103). Even assuming I99 is
correct, and the encroachment into its property is approximately IO inches, the relief
sought - removal of the encroachments - may not be justified and could be
compensable via money damages (i.e. t h e 3rdCC) (see Pennbus Realties LLC v. H
Eiqhth Avenue Associates, LLC, supra). The issue of money damages is not addressed
in 199's motion at all.
199, as the proponent of the motion for summary judgment, has not made a prima
facie showing of entitlement to judgment as a matter of law by tendering sufficient
evidence to eliminate any material issues of fact from the case /Winegrad v New York
Univ. Med. Ctr., 64 NY2d at 853). In any event, it is also w h l 'settled law that the court
should draw all reasonable inferences in favor of the nonmoving party and 197 has not
cross moved for summary judgment [Assaf v Ropoq Cab Cow., 153 AD2d 520, 521 [Ist
Dept 19891). Given these circumstances, 199's motion for summary judgment is denied.
It is hereby
Ordered that the motion by defendantkounterclaim plaintiff 1330 3'dAve Corp. is
denied for the reasons stated above; and it is further
,Ordered that any remaining discovery shall be complhed by March 9, 2012; and it
Ordered that the note of issue is extended to March 23,2012; and it is further
Ordered that this case shall appear on the Part 10 calendar for a status
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conference on March 22, 2012 at 9:30 a.m.; and it is further
Ordered that any relief requested but not expressly addressed by the court is
denied; and it is further
Ordered that this constitutes the decision and order of the court.
New York, New York
January 4, 2012
JAN 05 2012
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