Katimbang v 719 Ocean View Ave. LLC
Annotate this CaseDecided on September 27, 2006
Supreme Court, Kings County
Alexander Katimbang and Merle Katimbang, Plaintiffs,
against
719 Ocean View Avenue LLC, APS Builders Inc. and Peter Tirado, Defendants.
11584/06
Wayne P. Saitta, J.
The Defendants move this Court for an order for vacating a preliminary injunction issued by this court on April 25, 2006 enjoining Defendants from continuing any construction work at 719 Ocean View Avenue.
On reading and filing the Order to Show Cause dated May 5, 2006, the Affirmation in Support of Yevgeny Tsyngauz Esq., dated April 28, 2006, the Affidavit of Alex Kostovetsky, dated April 28 2006, and the exhibits annexed thereto; the Affirmation in Opposition of Michael J. Good, Esq. dated May 26, 2006, the Affidavit in Opposition of Merle Katimbang dated May 26, 2006, and the exhibits annexed thereto; the Reply Affirmation of Yevgeny Tsyngauz Esq., dated June 5, 2006 and the exhibits annexed thereto; the Amended Complaint dated June 5, 2006; the letter of Yevgeny Tsyngauz Esq., dated June 9, 2006 and annexed shoring pile design of Victor Gordon P.E.; and after an inspection at the site on July 7, 2006 and after a hearing on August 3, and 5, 2006, and upon all the proceedings heretofore had herein, and after due deliberation, NOW, on motion of Yevgeny Tsyngauz Esq., attorney for the Defendants, the motion to vacate the preliminary injunction is granted to the extent set forth below.
Defendants moved to vacate a preliminary injunction which enjoined them from continuing construction of a mixed use building at 719 Ocean View Avenue in Brooklyn.
Plaintiffs underlying action is for trespass alleging that Defendants, damaged their property, erected scaffolding on their property, and that Defendants' building encroaches on their property.
The injunction was issued on default on April 25, 2006 on the application of the Plaintiffs, who are adjoining homeowners. The injunction also required Defendants to remove equipment and scaffolding they had placed on Plaintiffs' property without permission. The part of the injunction which required the Defendants to remove the scaffolding and other equipment from Plaintiffs' property has since been complied with. [*2]
Defendants' building is "L" shaped and adjoins Plaintiffs' property on two sides: the rear or east lot line of Plaintiffs' property, and the south side lot line of Plaintiff's property.
Plaintiffs allege four separate encroachments:
First, that a concrete pier at the southeast corner of their lot encroaches to the west and north.
Second, that a girder and wood formwork encroaches over Plaintiffs' south side lot line.
Third, that the exterior wall of the building encroaches on the Plaintiffs' rear lot line by 1"Fourth, that girders and wood formwork encroach under the surface of Plaintiffs' rear yard.
With the consent of the parties, the court conducted an inspection of the premises on July7, 2006. The parties, their attorneys and their surveyors were present. At that inspection the court found that the concrete pier at the southeast corner did encroach on Plaintiff's lot by 10 inches to the west and by 4 inches to the south.
The court also found that the exterior wall and steel girder adjoining Plaintiffs' south side lot line did not encroach on their property, but that the wood formwork visible at ground level at south side lot line did encroach on Plaintiffs' property.
At the conclusion of the inspection, the court, on the record, vacated that portion of the injunction which barred Defendants' from any further construction on their own property, continued the portion which enjoined Defendants from committing any further encroachment on to Plaintiffs' property, and stayed that portion of the injunction which directed Defendants to remove any structure that encroached on Plaintiffs' property.
What remains before the court is that part of the injunction further forbidding encroachment on Plaintiffs' property and requiring removal of any existing encroachments. Defendants' motion was adjourned for a hearing to determine whether there was any encroachment of the rear lot line.
The Wall Along Plaintiffs' Rear Lot Line
The Plaintiffs' lot is not a rectangle, but a parallelogram, with its front and rear lot lines parallel to Brighton 8th Street and its side lot lines parallel to Ocean View Avenue. Plaintiffs claim that at the southeast corner of their lot, the exterior wall of Defendants' building encroaches over their rear lot line by 1 inch. Plaintiffs admit that at the northeast corner, the exterior wall is ½ inch clear of the rear lot line.
Defendants contend that no part of the wall of their building encroaches on Plaintiffs' rear lot line. They claim it is .2 feet (or approximately 2 ½ inches) clear of the rear lot line at the southeast corner and 6 inches clear at the northeast corner.
This discrepancy arises from a disagreement as to where the front lot line or street line is located. The rear lot line was measured from the street line. Plaintiffs' surveyor locates the street line approximately 3 1/8 inches further east of where Defendants' surveyor locates it.
Defendants' surveyor, Alexander Tsukerman, LS, made two cross cuts in the sidewalk in front of the property to establish a reference line. He testified that a reference line is a line running parallel to the street or front lot line that is run a given number of feet from the street line at a spot that is clear from any obstructions. It is done, so there is a convenient point from where further measurements can be run.
The cross cuts made by Defendants' surveyors are still visible. However, there is a difference of opinion between the parties as to the distance between the cross cuts and the street line. Defendants' surveyor testified that he set the cross cuts 11 feet from the front lot line, measuring the [*3]11 feet in line parallel to the side lot line.
Plaintiffs' surveyor Vincent Dicci LS, contended that it was standard practice to measure the distance between the reference line and the street line at a 90 degree angle from the street line.
This distinction is not relevant where a lot is a rectangle, however in this case Plaintiffs lot is a parallelogram. The distance between the street line and the cross cuts differs by .74 feet (or approximately 3 1/8 inches) depending whether it is measured parallel to the side lot line or at a 90 degree angle to the street line.
Plaintiffs' surveyor measured the rear lot line by assuming that the cross cut was 11 feet from the street line as measured from a 90 degree angle which is the equivalent of being 10.74 feet (or 10 feet 8 7/8 inches) from the street line as measured parallel to the side lot line. Defendants' surveyor measured the rear line by placing the street line 11 feet from the cross cut as measured parallel to the side lot. This resulted in Plaintiffs surveyor locating the front and rear lot lines 3 1/8 inches further east than Defendants' surveyor located them.
Defendants' surveyor, testified that he supervised the setting of the cross cuts to establish the reference points and that he had them set at 11 feet from the street line as measured as a prolongation of, (or parallel to) the side lot line. The court finds Mr. Tsukerman's testimony to be credible. While Plaintiffs' surveyor also testified credibly that it was standard practice to measure a reference line from a 90 degree angle, he did not have any personal knowledge of how these cross cuts were actually measured and so was not in a position to rebut Tsukerman's testimony on this point.
Additionally, at the hearing Defendants submitted a survey dated November 21, 2004 (exhibit B3) and a drawing dated September 21, 2004 (exhibit B17) both of which pre-date this litigation, and both of which show the cross cuts set at a distance of 11 feet from the street line as measured as a prolongation of the side lot line.
However, even though the court finds that Tsukerman had the crosscuts set at 11 feet from the street line, measured as a prolongation of the side lot lines, this alone does not resolve the question. Since the cross cuts were measured from where Defendants' surveyor located the street line, they are only as accurate as his placement of the street line.
Plaintiffs' surveyor, who the court found to be a credible witness, testified at the hearing that there are no reference points or landmarks on the official city maps which definitively locate the street lines in Brooklyn. The practice among surveyors is to locate the street line by using existing surveys of lots on the block that show reference points or landmarks that are still visible. This practice was not contested by Defendants.
At the hearing, numerous old surveys were put into evidence to establish where the street line for Plaintiffs' property should be located. However, the surveys differed by a matter of a few inches as to where they located the street line..
Plaintiffs' surveyor looked at several surveys to establish the street line. He testified that he relied on two surveys of properties located across Brighton 8th Street from plaintiffs' property, to establish the street line. The surveys from the same side of the street that he examined (exhibits 3-5, 7 and 8) differed by a few inches in where they located the street line. Also, two different surveys by Plaintiffs' surveyor of Plaintiffs' property which were done 20 years apart (exhibits 8A and 10), differed by an 1 inch as to where they located the street line. [*4]
Plaintiffs' surveyor testified that measuring from the surveys of two lots across the street (exhibits 2 and 3) the street line would fall 11 feet from the cross cuts, measured at a 90 degree angle. If this location for the street line is correct, then Defendants' wall would encroach Plaintiffs' rear lot line by 1 inch.
Defendants' surveyor contests the accuracy of the measurements from the lots relied on by plaintiffs (exhibits 2 and 3) and offered other surveys (exhibits A1-A3, A7 B16, and D) which he testified established the street line was 11 feet measured as a prolongation from the cross cuts. If this location of the street line is correct, then Defendants' wall would not encroach Plaintiffs' rear lot line.There is nothing in the four corners of the surveys themselves that would indicate one is more reliable than another. However, comparing the surveys, for any common reference points that show the same location for the street line, sheds some light on the situation.
Plaintiffs introduced a survey of Defendants' property done by Plaintiffs' surveyor, on December 24, 2002 (exhibit 15A). Defendants introduced a survey of Defendants' property done by Defendants surveyor on October 17, 2003 and amended June 7, 2006, (exhibit B1). Both surveys show the rear lot line and south side lot line of Plaintiffs' property. Both surveys also show a then existing wall, located 7 feet into the street from the street line.
Plaintiffs' surveyor originally testified that the two surveys showed a difference in the distance between the wall and the street line of 3 inches . However, it turned out that it was a wooden fence on top of the wall shown on one of the surveys that was 3 inches off. Both surveys, in fact, locate the street line as 7 feet from the wall. The court finds that based on the evidence presented that the location in the street line depicted in both Plaintiffs' exhibit 15A and Defendants exhibit B1 is the correct location of the street line for Plaintiffs property.
Both surveys show the rear lot line of Plaintiffs' property is 46.04 feet (or 46 feet ½ inch), which is the equivalent, east of the street line, measured in a line parallel to Ocean View Avenue. Thus exhibits B1 and 15A agree as to the location of the rear lot line as well. Exhibit B1 also shows that Defendants' building is .2 feet (2 ½ inches) clear of this rear lot line. Exhibit 15A does not show the wall as it predates Defendants' building.
Further, exhibit B1 also shows the cross cuts which exhibits B3 and B17 show as being 11 feet from the street line measured as a prolongation of the south side lot line. These surveys tie the cross cuts used for the current measurements, to the location of the street line in exhibits B1 and 15A.
The location of the rear lot line of Plaintiffs' property shown in exhibits B1 and 15A, is corroborated by two surveys of another lot that adjoins a continuation of the rear lot line of Plaintiffs' property . Defendants introduced a survey dated October 17, 2003, (exhibit B4) which shows in addition to Plaintiffs' and Defendants' properties, a one story frame building fronting Brighton 8th Place, which is one street north of Brighton 8th Street.
The rear lot line of that building's lot is a continuation of the rear lot line of Plaintiffs' property. Exhibit B4 shows that the northwest corner of that building is 2.6 feet west of that rear lot line.
Defendants also introduced exhibit B16 which is a survey showing the same building that was done by Plaintiffs' surveyor, Mr. Dicci, dated March 21, 2003. This survey also shows the northwest corner of the aforementioned frame building to be 2. 6 feet west of the lot line. Thus, exhibits B4 and B16 both place the rear lot line in the same location. Exhibit B4 also depicts the [*5]same concrete wall in the street and the same street line of Brighton 8th Street as exhibits B1 and 15A, and consequently, the same rear lot line. Thus, the location of the rear lot line in exhibits B4 and B16 corroborates the location of the rear lot line shown in B1 and 15A.
After reviewing all the surveys and drawings introduced into evidence as well as the testimony of both surveyors, the courts finds that the common locations depicted in surveys B1, B4, done by Defendants' surveyor, and depicted in B16 and 15A done by Plaintiffs' surveyor, demonstrate that the exterior wall of Defendants' building does not encroach on the rear lot line of Plaintiffs' property. The building clears the rear lot line by .2 feet (or 2 ½ inches) at the southeast corner. Both parties agree that the wall clears Plaintiffs' rear lot line by the time it reaches the northeast corner of Plaintiffs' lot.
The Foundation Wall at the Rear Lot Line
Plaintiffs also claimed that steel girders and wooden formwork which were part of the foundation wall along their rear lot line extended further under their lot than the portion of the wall that is above grade.
The fact that the steel columns and wooden formwork are under plaintiffs' yard, is not a defense to plaintiffs' claim of trespass. It is no less an encroachment even if it is completely below grade. Broadway Enterprises v Lum, 16 AD3d 413, 790 NYS2d 402 (2nd Dept. 2005). Defendants have no right to the use of the underground portions of Plaintiffs' property.
However, Plaintiffs have failed to meet their burden of proving an encroachment below grade. The only evidence offered by Plaintiffs on this point was the testimony of Merle Katimbang and three photographs. While the photographs do show that the steel girders and wooden formwork extend beyond the exterior wall to the west, it is unclear from the photos how far west they extend. Merle Katimbang testified that the girders and wood formwork extend 2 - 3 inches past the main part of the exterior wall. However, at its closest point to Plaintiffs' property in the south east corner the exterior wall is 2 ½ inches clear of Plaintiffs' rear lot line. Thus, if the girders and formwork extended 2 to 2 ½ inches west of the wall then they are still clear of Plaintiffs' rear lot line.
Even accepting maximum limit of Ms. Katimbang estimate, that the girders and formwork extended 3 inches west of the wall, that still would not have been sufficient to establish an encroachment. This is because the wall is closest to the rear lot line at the southeast corner and moves further away from the lot line as it approaches the northeast corner. There was no testimony as to how far north along the rear lot line the girders and formwork were located. Therefore it is not clear even assuming that they extended 3", that they crossed under the rear lot line.
By reason of the foregoing, Plaintiffs did not meet their burden of proving that the rear wall or foundation wall encroaches on their property, and have failed to demonstrate a likelihood of success on the merits of their claims as to the rear lot line. Therefore, plaintiffs are not entitled to a preliminary injunction except as to the concrete pier at the southeast corner, and the wood formwork on the south side lot line.
Wherefore, Defendants Order to Show Cause to vacate the preliminary injunction dated April 25, 2006, is granted provided that and it is further,
Ordered that Defendants shall forthwith remove the concrete pier at the southeast corner that encroaches on Plaintiff's lot by 10 inches to the west and by 4 inches to the south, and remove the wood formwork encroaching the south side lot line of Plaintiffs property. [*6]
This constitutes the decision and order of the Court.
ENTER
_______________
J.S.C.
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