Eylers v Klein

[*1] Eylers v Klein 2014 NY Slip Op 50397(U) Decided on March 5, 2014 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., IANNACCI and TOLBERT, JJ
2012-2808 D C.

Mark E. Eylers AND JODI M. EYLERS, Respondents,

against

Mark W. Klein, Appellant.

Appeal from a judgment of the City Court of Poughkeepsie, Dutchess County (Frank M. Mora, J.), entered June 19, 2012. The judgment, after a nonjury trial, awarded plaintiffs the principal sum of $1,487.50.

ORDERED that the judgment is reversed, without costs, and the action is dismissed.

In this small claims action, plaintiffs seek to recover damages for trespass, based on defendant's construction, on the parcel of property adjoining plaintiffs' property, of an asphalt driveway that allegedly encroached on plaintiffs' property. At the nonjury trial, plaintiff Mark Eylers introduced into evidence photographs that depicted demarcations he had made to mark the alleged property border, as well as the intrusions over that border. He testified that defendant had persisted in the construction of the driveway even after plaintiffs had informed him of the fact of the trespass and demanded that defendant cease construction of the driveway and related trespasses on their side of the property border. Plaintiffs also introduced into evidence, among other things, two itemized estimates of the cost to restore their property. Defendant confined his presentation at trial to a demand that plaintiffs produce a survey. Following trial, the City Court awarded judgment to plaintiffs in the principal sum of $1,487.50.

By demanding that plaintiffs produce a survey, defendant challenged the allegation that the property where the alleged encroachment occurred was owned by plaintiffs rather than defendant. Plaintiffs bore the burden of proving, by competent evidence, their ownership of the area allegedly encroached upon (see Schwartzberg v Shek Cheung Lui, 279 AD2d 466 [2001]; Duggan v Hyland, 50 AD2d 1066 [1975]; Hileman-Rizzo v Krysty, 10 Misc 3d 135[A], 2005 NY Slip Op 52118[U] [App Term, 9th & 10th Jud Dists 2005]; see also Thomson v Nayyar, 90 AD3d 1024 [2011]; Patterson v Palmieri, 284 AD2d 852 [2001]). Plaintiffs failed to introduce any such evidence, and thus, failed to make out a prima facie case. Therefore, the judgment failed to render substantial justice between the parties according to the rules and principles of substantive law (see UCCA 1804, 1807).

We reach no other issue.

Accordingly, the judgment is reversed and the action is dismissed.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: March 05, 2014