Sharma v Trejos

[*1] Sharma v Trejos 2012 NY Slip Op 50901(U) Decided on May 16, 2012 Supreme Court, Queens County Agate, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 16, 2012
Supreme Court, Queens County

Pankaj Sharma and RAJNI SHARMA, Plaintiffs

against

Mirta E. Trejos and YARMITH K. TREJOS, Defendants.



19724/11



Attorneys on case: For Plaintiff: Richard G. Johnson, Esq.

110-22 Liberty Avenue

Richmond Hill, NY 11419

And Attorney for Defendant:Gangadeen & Associates

103-04 Liberty Avenue

Ozone Park, NY 11417

Augustus C. Agate, J.

The following papers numbered 1 to 13 read on this Order to Show Cause by the plaintiffs for an order directing and compelling the defendants to remove a brick pier and wall structure which encroaches upon plaintiffs' driveway; and cross motion by defendants to dismiss the complaint.

Papers

Numbered

Order to Show Cause - Affidavits - Exhibits ......1 - 4

Notice of Cross Motion - Affidavits - Exhibits ...5 - 8

Affirmation in Opposition - Exhibits .............9 - 11

Replying Affirmation ............................. 12 - 13

Upon the foregoing papers it is ordered that this Order to Show Cause by the plaintiffs and cross motion by defendants are decided as follows:

Plaintiffs are owners of property located at 94-16 96th [*2]Street in Ozone Park, Queens. Plaintiffs purchased the property, which consist of a single family home and detached garage, in August 2010. Plaintiffs allege that defendants, adjacent landowners of the property located at 94-18 96th Street, erected a brick pier and wall structure which encroaches upon the plaintiffs' property by approximately one foot. Plaintiffs assert that the structure prevents them from parking their vehicles in their driveway inasmuch as there is a danger of the vehicles colliding with the structure or the plaintiffs' home. Plaintiffs contend that the lack of space in their driveway available for ingress and egress has already resulted in minor damage to the passenger side mirror and front bumper on one of their vehicles. Plaintiffs subsequently commenced this action pursuant to RPAPL § 871 seeking a permanent injunction. The complaint also seeks to recover money damages for nuisance and trespass.

In their Order to Show Cause, plaintiffs seek to compel defendants to remove the brick pier and wall structure which encroaches upon their property. Defendants cross move to dismiss the complaint on the ground that there is a defense founded upon documentary evidence and on the ground that the complaint fails to state a cause of action. Defendants also contend that plaintiffs have not timely commenced this action.

RPAPL § 871 provides that "[a]n action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land." In order to obtain the injunction, the movant must demonstrate not only the existence of the encroachment, but that the benefit to be gained by compelling its removal would outweigh the harm that would result from granting such relief. (Broser v Schubach, 85 AD3d 957, 957 [2011]; Town of Fishkill v Turner, 60 AD3d 932, 933 [2009].) Whether to grant an injunction pursuant to RPAPL § 871 depends on all the equities between the parties, with consideration given to factors such as the extent of the impairment created by the encroachment, the defendant's hardship in removing the encroachment, whether any alternatives would afford more equitable relief or whether money damages would be a just and adequate remedy. (Marsh v Hogan, 81 AD3d 1241, 1242-1243 [2011].)

Further, a preliminary injunction is a drastic remedy which will not be granted unless a clear right thereto is established under the law and the undisputed facts upon the moving papers. (William M. Blake Agency, Inc. v Leon, 283 AD2d 423, 424 [2001].) The decision to grant a preliminary injunction is a matter ordinarily committed to sound discretion of the court hearing the [*3]motion. (Dixon v Malouf, 61 AD3d 630, 630 [2009]; Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 AD3d 1072, 1073 [2008]; Nelson, L.P. v Jannace, 248 AD2d 448, 448-449 [1998].) In order to demonstrate entitlement to a preliminary injunction, the movant must establish (1) a probability of success on the merits, (2) the danger of irreparable injury in the absence of injunctive relief and (3) a balancing of the equities in favor of the movant. (Aetna Ins. Co. v Capasso, 75 NY2d 860, 862 [1990]; Doe v Axelrod, 73 NY2d 748, 750 [1988]; Matter of Advanced Digital Sec. Solutions, Inc. v Samsung Techwin Co. Ltd., 53 AD3d 612, 613 [2008].) The branch of the cross motion to dismiss the complaint on

the ground of failure to state a cause of action pursuant to CPLR 3211(a)(7) is denied. When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. (Sokol v Leader, 74 AD3d 1180, 1180-1181 [2010]; seeGuggenheimer v Ginzburg, 43 NY2d 268, 275 [1977].) "In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Sokol v Leader, 74 AD3d at 1181; see Bokhour v GTI Retail Holdings, Inc., 94 AD3d 682 [2012]; Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994.) "Whether a plaintiff can ultimately establish its allegations is not part of the calculus." (Sokol v Leader, 74 AD3d at 1181, quoting EBC I, Inc. v Goldman Sachs & Co., 5 NY3d 11, 19 [2005].)

At bar, accepting the factual allegations of the complaint as true and according the plaintiff the benefit of every favorable inference, plaintiffs have adequately pleaded causes of action for nuisance and trespass by alleging that they have been unable to fully use and enjoy their land as a result of defendants' encroaching structure. (see Aristides v Foster, 73 AD3d 1105, 1106 [2010]; Zimmerman v Carmack, 292 AD2d 601, 602 [2002].) In addition, the alleged encroachment upon plaintiffs' property sets forth a cause of action for a permanent injunction. (RPAPL § 871.)

The branch of the cross motion to dismiss the complaint on

the ground that there is a defense founded upon documentary evidence pursuant to CPLR 3211(a)(1) is denied. On a motion to dismiss a complaint on the ground that there is a defense founded upon documentary evidence pursuant to CPLR 3211(a)(1), the evidence submitted must "resolve all factual issues as a matter [*4]of law and conclusively dispose of the plaintiff's claim." (Del Pozo v Impressive Homes, Inc., 29 AD3d 621, 622 [2006] [quoting Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2003]; Dodge v King, 19 AD3d 359, 360 [2005].) Here, the defendants failed to present documentary evidence which resolves all factual issues as a matter of law.

The branch of the cross motion to dismiss the complaint on

the ground that the complaint is time-barred pursuant to RPAPL § 611 is denied. RPAPL § 611 does not apply to the facts of this case inasmuch as the structure at issue here is not "the exterior wall of a building."

Plaintiffs' Order to Show Cause for a preliminary injunction is denied. Plaintiffs have not established their likelihood of success on the merits. Plaintiffs have not demonstrated that the alleged encroachment is not de minimis. (see Averaimo v Tavares, 93 AD3d 745, 746 [2012]; Broser v Schubach, 85 AD3d at 957; Matter of Zhuang Li Cai v Uddin, 58 AD3d 746, 746 [2009].) Indeed, defendants annex a survey dated September 14, 2011 showing that the subject driveway has a width of 7.7', and the structure extends 0.3', or 4" into the driveway. Plaintiff's survey, however, dated August 9, 2010, indicates that the structure encroaches 0.20' into the driveway.

The court also finds that the equities do not favor the plaintiffs in this case. Plaintiffs purchased the property in August 2010. Plaintiffs maintain that defendants erected the structure in 2009, although defendants claim that the structure existed when they purchased their property in 1999. Assuming arguendo that plaintiffs are correct, they were aware of the existence of the structure when they purchased their home and chose to proceed with the transaction. Under these circumstances, the court will not grant them the drastic remedy of a preliminary injunction.

Moreover, directing the removal of the brick pier and wall structure is not available at this juncture since it would grant the plaintiffs a portion of the ultimate relief sought in this action. (see Board of Mgrs. Of Wharfside Condominium v Nehrich, 73 AD3d 822, 824 [2010]; Village of Westhampton Beach v Cayea, 38 AD3d 760, 762 [2007].)

Accordingly, this Order to Show Cause by the plaintiffs for an order directing and compelling the defendants to remove a brick pier and wall structure is denied.

The cross motion by defendants is denied. [*5]

Date: May 16, 2012

AUGUSTUS C. AGATE, J.S.C.