Opinion
106047/2009
07-14-2011
444 East 86th Owners Corp., Plaintiff, v. 435 East 85TH Street Tenants Corp., Defendant.
For Plaintiff: Dunnington, Bartholow, & Miller For Defendant: Gallet Dreyer & Berkey, LLP
For Plaintiff:
Dunnington, Bartholow, & Miller
For Defendant:
Gallet Dreyer & Berkey, LLP
Saliann Scarpulla, J.
Plaintiff 444 East 86th Owners Corp. ("86th Owners") moves for a preliminary injunction, pursuant to CPLR 6301, enjoining defendant 435 East 85th Street Tenants Corp. ("85th St. Tenants") and its agents from continuing to damage 86th Owners' garage roof, pending resolution of this action.
86th Owners and 85th Street Tenants are adjacent property owners in Manhattan. 86th Owners owns a high-rise residential condominium building located at 444 East 86th Street, and 85th Street Tenants owns a low-rise cooperative apartment building located at 435 East 85th Street. 86th Owners' building was constructed partially around the 85th St. Tenants' building, and includes a garage that sits below ground, partly under 86th Owners' building and courtyard, located between the two buildings. Some beams that support 86th Owners' building run through 85th St. Tenants' premises. Apparently, at some point in the past, the properties were under common ownership.
Presently, 85th St. Tenants owns the air rights from the surface of the courtyard to nine feet above that surface, pursuant to deeds written by 86th Owners' predecessor on June 12, 1972.
On July 3, 1973, 85th St. Tenants' predecessor gave 86th Owners' predecessor a limited easement. The easement provides, in relevant part, that inasmuch as 86th Owners' predecessor "has encroached upon" premises owned by 85th St. Tenants' predecessor, "by the construction of a building and certain supporting concrete beams at, above, and below grade level," 86th Owners' predecessor is forever granted "the right and easement to maintain the encroachment" and "shall maintain and keep in good order and repair, the blacktop surface of the area described . . . at its cost and expense." The easement also provides that it constitutes "a covenant to run with the land and shall be binding and inure to the benefit of the successors and assigns of the parties hereto."
86th Owners alleges that, from the written easement, a secondary easement is implied permitting 86th Owners to ensure that the encroachment is kept safe and in good condition by taking all actions reasonably necessary to maintain and keep in good order and repair the beams, piers, and other structural elements of the encroachment, at its own cost and expense.
On April 29, 2009 and May 25, 2010, New York City Department of Buildings ("DOB") inspectors issued notices of violation to 86th Owners regarding the improper drainage on the garage roof. On February 18, 2010 and July 22, 2010, the New York City Environmental Control Board ("ECB") dismissed the notices of violation. In the earlier hearing, the ECB found that the credible evidence did not establish that 444 East 86th Street was the place of the occurrence. In the later hearing, the ECB found that 86th Owners did not own the premises where the water was being improperly drained.
In 2009, 86th Owners commenced this action seeking a judgment declaring that the secondary easement is in full force and effect, and that 85th St. Tenants is in violation of the easement, and seeking an order permanently enjoining 85th St. Tenants from interfering with the easement. Specifically, 86th Owners alleges that 85th St. Tenants is using the garage roof and transfer beams in a manner that is inconsistent with good waterproofing practice. Specifically, it alleged that 85th St. Tenants and its shareholders have placed on the garage roof plants, planters, fencing, gravel, wood tile, stone tile, sheds, furniture, debris, and bicycles, have dug holes in the roof for fence posts, and have installed pipes draining water from its building roof onto the garage roof. 86th Owners further alleged that this conduct has adversely impacted, and continues to adversely impact, the garage roof water drainage, and is damaging the top surface of the garage roof and the masonry surrounding certain transfer beams, and is permitting water to seep into 86th Owners' garage, superintendent's office, and laundry room.
Meanwhile, on October 28, 2010, after commencement of this action, the DOB fined 86th Owners for spalling, or, flaking, concrete on the underside of the garage roof. 86th Owners alleges that correcting the condition and clearing the violation requires it to stop the water from infiltrating through the garage roof which, in turn, requires it to repair or replace the top surface of the garage roof, and perhaps repair the masonry piers, as well. 86th Owners contends that, at minimum, this requires that 85th St. Tenants cease diverting rain water and snow melt from their roof onto the garage roof, and will ultimately require decisions on the use, if any, by 85th St. Tenants of the garage roof.
By order dated May 27, 2010 ("the probe order"), this court granted 86th Owners' motion for a preliminary injunction, and other, related relief, to the extent that: it directed 86th Owners to conduct probes of the garage roof commencing on June 14, 2010, and, during the 10 consecutive business days prior to that date, the parties and their representatives could inspect the garage roof, and take still photographs and videos of the area as required for conducting the probes, probe inspections, and probe repairs. Pursuant to the probe order, 85th St. Tenants was prohibited from delaying or interfering with 86th Owners' inspections and probes, and from accessing the garage roof, except in an emergency, and was directed to notify its shareholders that they must remove all personal property, with the exception of heavy items, such as sheds, from the garage roof. The order permits 86th Owners to remove, and insure, the shareholders' personal property during the probing period, at its own expense.
On January 3, 2011, the DOB issued a violation to 85th St. Tenants for failure to maintain the garage roof, and for permitting improper drainage to exist. The violation advised 85th St. Tenants that, during an inspection, a DOB forensic engineering unit engineer found improper drainage on top of the garage roof concrete slab, caused by the use of planters on the roof, which caused severe damage to the concrete slab and foundation piers of the garage roof.
85th St. Tenants commenced a CPLR Article 78 proceeding, seeking to enjoin the DOB, the ECB, and 86th Owners from enforcing the violation and holding a hearing before an administrative agency, pending resolution of this action. This court denied and dismissed the petition. See Matter of 435 E. 85th St. Tenants Corp. v Commissioner of the Dept. of Bldgs. of the City of New York, Sup Ct, New York County, Index no. 104542/2011.
86th Owners now seeks a preliminary injunction enjoining 85th St. Tenants from continuing to damage 86th Owners' garage roof on the ground that the structural integrity of the building is being threatened by 85th St. Tenants' acts and omissions, and those of its shareholders. 86th Owners contends that 85th St. Tenants' continued damage to 86th Owners' garage roof is demonstrated by the January 3, 2011 violation that the DOB issued to 85th St. Tenants, and that 85th St. Tenants is refusing to make the garage roof available for engineering probes and roof repairs, in violation of the probe order. Specifically, 86th Owners contends that 85th St. Tenants has failed to clear extraneous material from the garage roof, and that 86th Owners has been unable to find a relocation firm willing to take responsibility for clearing the garage roof of old, ill maintained items, such as rusted sheds and plants stored on the roof.
In opposition,85th St. Tenants contends that the 86th Owners' claims are time-barred by Real Property Actions & Proceedings Law (RPAPL) 2001(2), that 86th Owners has abandoned its rights under the easement, that the claims are without merit because they contradict the express terms of the limited easement held by 86th Owners, and that 86th Owners has failed to demonstrate its entitlement to the preliminary injunction requested.
Discussion
First, RPAPL 2001(2) does not apply to the circumstances presented here. The section provides, in relevant part, that:
[a]n action to enforce the covenant or agreement by compelling the removal or alteration of a structure, or to recover damages for breach of the covenant or agreement, or to recover damages for infringement of an easement or other interest in the premises so restricted, cannot be maintained unless it is commenced (a) before the expiration of two years from the completion of the structure concerned, or (b) before September one, [1965], whichever shall be laterThe section applies only to permanent structures and not to minor, temporary encroachments, such as the planters, bicycles, fencing, and temporary sheds placed on the surface of the garage roof by the 85th St. Tenants shareholders, which do not permanently obstruct 86th Owners' exercise of its rights under the easement. See Ram Is. Homeowners Assn. v. Hathaway Realty, 305 AD2d 390, 391 (2nd Dept 2003); Rahabi v. Morrison, 81 AD2d 434, 439 (2nd Dept 1981); see e.g. Pak v. 5 Harrison Assocs., Ltd., 43 AD3d 807, 808 (1st Dept 2007). Therefore, 86th Owners' claims are not time-barred by RPAPL 2001.
(RPAPL 2001 [2]).
Contrary to 85th St. Tenants' contention, 86th Owners has not abandoned its rights under its easement. "In order to prove an abandonment it is necessary to establish both an intention to abandon and also some overt act or failure to act which carries the [unequivocal] implication that the owner neither claims nor retains any interest in the easement." DeJong v. Abphill Assocs., 121 AD2d 678, 679 (2nd Dept 1986); see Consolidated Rail Corp. v. MASP Equip. Corp., 67 NY2d 35, 39 (1986). Thus, "nonuser alone, no matter how long continued, can never in and of itself extinguish an easement created by grant." DeJong v. Abphill Assocs., 121 AD2d at 679). The record is devoid of any evidence that 86th Owners intended to abandon its rights under the easement.
However, the motion to enjoin 85th St. Tenants from continuing to damage 86th Owners' building is denied. To demonstrate entitlement to a preliminary injunction directing a party to perform a particular act or requiring a party to refrain from certain behavior, the plaintiff must demonstrate that it is likely to succeed on the merits of the claim, that absent an injunction, it will suffer irreparable injury that cannot be compensated by money damages, and that the equities weigh decidedly in favor of the plaintiff. Amarant v. D'Antonio, 197 AD2d 432, 434-435 (1st Dept 1993); see CPLR 6301.
It appears unlikely that 86th Owners will prevail on the merits, inasmuch as, on the record now before the court, there is no consensus regarding whether 85th St. Tenants' acts or omissions are the cause of the damage being sustained by 86th Owners' building. Certainly, the photographs submitted by the parties demonstrate that water is infiltrating the interior of 86th Owners' premises, and damaging the premises. And, there is no dispute that the water is the result of rain fall and snow melt, rather than leaking plumbing. 86th Owners' engineering expert witness attests that the leaks are caused by 85th St. Tenants' use of the garage roof/courtyard (see Gennedy Saratovsky, P.E., Apr. 22, 2009 Aff., ¶¶ 8, 9).
Significantly, however, 85th St. Tenants' engineering expert witness attests that the garage roof membrane is sound, and that other sources for the leaks must be investigated (see Renee L. Beck, P.E., Dec.15, 2009 Aff., ¶ 20). In addition, the DOB has issued violations to both 86th Owners and 85th St. Tenants. The court notes that it cannot be inferred from the ECB's dismissals of two violations issued to 86th Owners for failure to establish the place of the occurrence that 85th St. Tenants is causing the water damage. 85th St. Tenants was not a party to either of the hearings, and, therefore, the ECB's determination was based primarily on evidence presented by 86th Owners.
Contrary to the parties' contentions, the scope of the easement held by 86th Owners is not relevant to whether 85th St. Tenants should be enjoined from continuing to damage 86th Owners' premises. There can be no real dispute that, if 85th St. Tenants' acts or omissions are found to be causing water to infiltrate and damage 86th Owners' property, then 85th St. Tenants will be held responsible for that damage, regardless of the scope of the easement.
Further, 86th Owners has not demonstrated that it will suffer irreparable harm, in the absence of the injunction. Under basic tort principles, 86th Owners may be recompensed for property damage, if any, sustained as the result of 85th St. Tenants' alleged misconduct. For example, 85th St. Tenants may be held liable, if it is found to be draining water from its premises by artificial means, such as pipes, onto 86th Owners' property and that water was the cause of the damage. See Congregation B'nai Jehuda v. Hiyee Realty Corp., 35 AD3d 311, 312 (1st Dept 2006).
Contrary to 86th Owners' contention, its admitted inability to comply with the Building Code does not, in this instance, constitute irreparable injury. "Where an obstruction to the enjoyment of the easement is of a permanent or continuous nature and the damages for each day's obstruction are insignificant, the remedy of successive actions at law for such damages is inadequate and an action in equity for an injunction will lie." Rahabi v. Morrison, 81 AD2d at 438, citing 25 Am Jur 2d, Easements & Licenses, § 120. As is discussed below, the record demonstrates that 86th Owners' inability is most probably the result of its own conduct, not 85th St. Tenants' conduct. It appears that a balance of the equities does not lie in 86th Owners' favor. 86th Owners has admittedly failed to comply with the probe order, issued more than one year ago, and has not sought the court's intervention in enforcing that order.
While 86th Owners contends that its failure is due solely to 85th St. Tenants' refusal to cooperate, it has offered no objective evidence in support of its contention. In addition, 86th Owners does not deny 85th St. Tenants' allegations that it duly notified its shareholders in writing that they must remove their personal property from the garage roof, that it and its shareholders have removed most of the moveable objects from the garage roof, that it offered 86th Owners assistance in locating a relocation contractor to remove the sheds and fences, and that 86th Owners did not hire the contractor that it suggested. In addition, it does not dispute 85th St. Tenants' allegations that it has refused to participate in negotiations regarding a license agreement, pursuant to RPAPL 881, permitting 86th Owners access to 85th St. Tenants' premises to investigate and repair. It does not deny 85th St. Tenants' allegation that its shareholders have commenced a small claims court action against 86th Owners arising out of its failure to timely conduct the probes.
Last, inasmuch as it appears that 86th Owners' premises is continuing to sustain water damage, that there is a difference of expert opinion regarding the cause and location of the water infiltration, and that the investigation and probing of the garage roof by engineering experts may reveal the sources of the water infiltration, and, thus, permit corrective measures to be taken by the responsible party, this court's probe order is continued and extended in all respects, and the probes shall commence on August 1, 2011.
In accordance with the foregoing, it is
ORDERED that the motion is granted to the limited extent that the probe order of this court dated May 27, 2010 and filed June 4, 2010 is continued and extended in all respects, and the probes shall commence on August 1, 2011; and it is further
ORDERED that the failure of any party to timely comply in full with the probe order shall result in the imposition of sanctions against the noncomplying party, pursuant to CPLR 3126, upon application of the aggrieved party.
Dated: New York, NY
July, 2011
ENTER:
_______________________________
J.S.C.