Opinion
116376/06.
Decided November 8, 2010.
Jaroslawicz Jaros, Esqs., Attorneys for Plaintiff.
Herrick Feinstein LLP, Attorneys for Defendant.
This matter arises between adjoining landowners at 575 Eighth Avenue, New York, NY (the plaintiff, Pennbus Realties, LLC's ["Pennbus"] property, and hereinafter sometimes "575"), and at 585 Eighth Avenue, New York, NY (defendant H Eighth Avenue Associates' ["HEAA"] property, and hereinafter sometimes "585"). There is a 24-story building at 575, which has a north wall upon which three masonry chimneys, also known as stacks, run. According to the complaint, HEAA purchased 585, a three-story building adjacent to 575, in 2006. The chimneys of 575 run from the top of that building, and come to rest on the south structural, or parapet, wall of the three-story building at 585.
In 2006, defendant Gateway Demolition Corp. ("Gateway") began demolishing 585. Shortly thereafter, Pennbus filed the complaint in this action seeking: 1) an injunction to prevent Gateway from demolishing the chimneys; 2) adverse possession of the land under and between the chimney stacks, which land was formerly part of the 585 parcel; and 3) damages in the event defendants cause harm to 575. Defendant counterclaimed seeking: 1) a declaratory judgment that Pennbus did not acquire any part of the parcel at 585 by adverse possession, 575's occupation of any portion of the 585 property constitutes trespass, nuisance and illegal taking and therefore defendant is entitled to remove or demolish any structure on 585; and 2) damages for impeding the demolition of 585.
Defendant HEAA now moves for summary judgment dismissing the complaint and on its first counterclaim for declaratory relief. Plaintiff Pennbus has requested that the court search the record and grant summary judgment to Pennbus without need of a formal cross motion. The claims and counterclaims are for declaratory judgment involving statutory construction, both parties have notice of Pennbus' request for reverse summary judgment ( O'Hara v Del Bello, 47 NY2d 363) and both parties have charted a summary judgment course by laying bare their proof ( Monteferrante v New York City Fire Dept., 63 AD2d 576 [1st Dept 1978], affd 47 NY2d 737; compare I.J.E. Constr. Corp. v Dollar Fed. Sav. Loan Assn., 92 AD2d 525 [1st Dept 1983]). Accordingly, in this decision and order the court will treat plaintiff's opposition as a cross-motion for summary judgment and equitable relief.
Evidentiary Objections
Pennbus correctly notes that "the defendants failed to append a complete set of the pleadings to their motion for summary judgment as required by CPLR 3212(b). Accordingly, denial of the motion was required." Wider v Heller , 24 AD3d 433 , 434 (2nd Dept 2005). In addition, Pennbus objects to consideration of any engineering or architectural opinions raised by the Parikh Affidavit in support of HEAA's motion, as he is an accountant, and not an engineer or architect. Matott v Ward, 48 NY2d 455, 459 (1979) ("expert should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable"); accord Hofmann v Toys R' Us, NY Ltd. P'ship, 272 AD2d 296 (2nd Dept 2000). Finally, Pennbus argues that the expert report upon which Mr. Parikh relies is inadmissible hearsay because it was not submitted under oath. Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 (1979) (evidence in support of summary judgment must be in admissible form).
The court declines to deny defendant's motion for summary judgment on the basis of the initial defects in its submission. Subsequent to the motion, both parties charted a procedural course for summary judgment as if the proper submissions had been made. Compare Roche v Claverack Coop. Ins. Co. , 59 AD3d 914 , 916 (3rd Dept 2009). Further, the record is sufficiently complete for the court to make the required determinations. See Welch v Hauck , 18 AD3d 1096 , 1098 (3rd Dept), lv denied 5 NY3d 708 (2005); accord Pandian v New York Health Hosps. Corp. , 54 AD3d 590 , 591 (1st Dept 2008). In the interest of efficient determination of this matter (CPLR § 104), given the absence of any prejudice attributable to defendant's failure to initially submit a complete set of pleadings and the court's preference for resolving disputes on the merits ( see, e.g., Kitts v Blossom N., LLC , 70 AD3d 1339 [4th Dept 2010]), the motion for summary judgment will be considered.
With regard to the evidentiary defects with defendant's engineering reports, the court will not rely upon the unsworn, hearsay Engineering Report submitted with the Notice of Motion. Finally, the court will not consider the Parikh Affidavit for engineering and architectural opinions.
Adverse Possession Claim
As a general rule, HEAA cannot carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof ( George Larkin Trucking Co. v Lisbon Tire Mart, Inc., 185 AD2d 614, 615 [4th Dept 1992]); however, as both parties have moved for summary judgment, and both parties seek injunctions in connection with Pennbus' claim for adverse possession, the court must first determine whether the property on 585 has been adversely possessed.
The complaint seeks strict adverse possession of the land on 585 that is under and between the chimney stacks attached to 575. Although raised for the first time in its opposition papers, the complaint makes no claim for prescriptive easement and as such, plaintiff's easement arguments will not be considered. See Azzopardi v American Blower Corp., 192 AD2d 453, 454 (1st Dept 1993) ("the court should never even have considered arguments making their initial appearance in reply papers"); see also Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 (1st Dept 1992); Dannasch v Bifulco, 184 AD2d 415, 417 (1st Dept 1992) ("[t]he function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion"); accord Schultz v 400 Coop. Corp., 292 AD2d 16, 21 (1st Dept 2002).
Despite major changes in the Real Property Actions and Proceedings Law ("RPAPL") in 2008, it is still beyond cavil that to establish a claim for adverse possession, the claimant must establish that his or her possession was: 1) hostile and under claim of right; 2) actual; 3) open and notorious; 4) exclusive; and 5) continuous for the applicable statutory period. See Chion v Radziul , 62 AD3d 931 , 932 (2nd Dept 2009). All of these elements, with all inferences being drawn in favor of the nonmovant ( Creighton v Milbauer, 191 AD2d 162, 166 [1st Dept 1993]), must be demonstrated as a matter of law for entitlement to summary judgment (CPLR 3212[b]). Finally, the court notes that the elements must be proven with clear and convincing evidence, as New York law disfavors acquisition of title by adverse possession. Joseph v Whitcombe, 279 AD2d 122, 126 (1st Dept 2001); see also Keena v Hudmor Corp. , 37 AD3d 172, 173
(1st Dept 2007). Here, the complaint and evidence fail to establish several of the elements.
First, there is no evidence of actual occupation of the land on 585. Although Pennbus argues in its Memorandum in Opposition that "there is no proof in the record that [the chimneys] ended anywhere other than all the way down" ( see Mem. In Opp., at 10), Pennbus' own expert stated that "[i]t was also clear that these chimneys extended over to the adjacent building. . . ." See Ellis Affidavit, at 2 (emphasis added); see also photographs of chimneys resting on parapet wall attached to Parikh Affidavit as Exh. B.
Despite the foregoing statement in the Pennbus Memorandum in Opposition, to establish hostility "there must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period." Brand v Prince, 35 NY2d 634, 636 (1974); accord Joseph, 279 AD2d at 125-126. Further, while a portion of a building being erected on one's own land and projecting over the adjoining land of a neighbor may be a legal nuisance, it does not give rise to a cause of action for ejectment. Aiken Ketchum v Benedict, 39 Barb 400 (Sup Ct, NY County 1863); accord Hoffman v Armstrong, 48 NY 201 (1872); see also 81 NY Jur 2d, Nuisances § 29 ("where one erects a building upon the line of his or her own premises so that the eaves or gutters project over the lands of neighbors, an action for a nuisance is the appropriate remedy"). Thus, Pennbus has also failed to demonstrate hostility by the projection of the chimney stacks over 585's structural or parapet wall.
Further, there is no indication in the submissions that possession of the areas under and between the chimneys was under any claim of right. The only evidence offered in this regard is the statement that the restoration of the chimneys in 2002-2003 was under a claim of right. See Rosenblatt Affidavit, at 2. However, this action of some eight years ago not only fails to establish the claim of right for the 10-year prescriptive period ( see Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159; accord Oak Ponds v Willumsen, 295 AD2d 587, 588 [2nd Dept 2002]), but seems to be the sole offer of any such claim.
Finally, it does not matter that the building at 575 may have been in place for eighty-odd years, "[t]he mere possession of land without any claim of right, no matter how long it may be continued, gives no title." Estate of Becker v Murtagh , 75 AD3d 575 , 578 (2nd Dept 2010), quoting Gerlach v Russo Realty Corp., 264 AD2d 756, 757 (2nd Dept 1999). For the foregoing reasons, Pennbus' deemed cross-motion for summary judgment declaring that the property under and between the chimney stacks on the property 585 has been adversely possessed is denied. The portion of HEAA's motion for summary judgment on its counterclaim seeking a declaration that Pennbus has not acquired any part of 585 by virtue of the presence of 575's chimney stacks is granted.
Injunctive Relief
While it may be clear that there has been no adverse possession of the property at 585, both parties are before the court requesting injunctive relief for the undisputed infringement of the building at 575 onto the top of the building at 585. What is more, the infringement is causing injury to both parties. Pennbus has submitted an affidavit stating that: 1) removing the chimney stacks would involve the eviction of tenants adjoining the wall into which the chimneys are built; 2) the chimneys are valuable to the tenants of 575 as conduits for risers for mechanical, electrical or communications systems, or ventilation and exhaust ducts; and 3) to remove the chimney flues would be extremely expensive, as they are stitched into the wall.
Concomitantly, HEAA is being prevented from improving its property at 585. Indeed, at some critical juncture, the demolition work being performed caused a dangerous falling-debris condition to occur in the vicinity. NYC Department of Buildings issued a "full stop work order" as of June 29, 2007 and that order was then partially rescinded on May 6, 2009 to stabilize chimney stacks attached to the side of the building at 575. Yet, there is no indication, save the apparently insubstantial square footage beneath the chimneys, that a substantial benefit will accrue to HEAA, as compared to the prejudice that will accrue to Pennbus, from an injunction directing Pennbus to remove the chimney stacks. See, e.g., Medvin v Grauer, 46 AD2d 912 (2nd Dept 1974) ("in an action in equity for a mandatory injunction the court may consider the hardship to a defendant and the corresponding lack of benefit to a plaintiff were the injunction to be granted").
"As a general rule, a mandatory injunction to remove or destroy a building is a drastic remedy which will only be granted if the benefit to the movant if the injunction were granted and the irreparable harm to the movant if the injunction were not granted substantially outweighs the injury to the party against whom the injunction is sought." Matter of Angiolillo v Town of Greenburgh , 21 AD3d 1101 , 1104 (2nd Dept 2005), citing Forstmann v Joray Holding Co., 244 NY 22, 30 (1926) ("[w]here the circumstances are not such that the public force should be brought to bear upon defendants through the courts equity will not act"); Sunrise Plaza Assoc., L.P. v International Summit Equities Corp., 288 AD2d 300, 301 (2nd Dept 2001), lv denied 97 NY2d 612 (2002) ("[w]here the removal or destruction of a building is the object of an injunction, the courts will generally exercise caution in granting such relief, and will generally not do so unless there is a substantial benefit to be gained by the plaintiff") (further citation omitted).
Moreover, while there is no dispute that the chimney stacks cross upon and onto the building at 585, the placement of the stacks predated the time at which HEAA obtained title. It is probable that HEAA knew of, and in all events, had it within its power to know of the existence of the chimney stacks either by inspection or survey. Thus, it would be questionable for the court to use its equitable power to force removal of the chimney stacks at such great expense. See Barca v Ferguson, 283 App Div 743, 744 (2nd Dept 1954).
Given the harm that would accrue to Pennbus from the issuance of an injunction to remove the chimney stacks, and the corresponding lack of benefit to HEAA ( see Matter of Angiolillo, 21 AD3d at 1104), the court declines to direct the removal of the chimney stacks via injunction. Nonetheless, the court is required to fashion a remedy because where "the injury is permanent in character, and the damages resulting therefrom continuous in their nature, and . . . it is impossible, or difficult, to ascertain or determine the extent of the injury which may flow from a continuance of the wrong, an injunction is the proper remedy." Poughkeepsie Gas Co. v Citizens' Gas Co., 89 NY 493, 497 (1882); accord State v Johnson, 45 AD3d 1016, 1020 (3rd Dept 2007); see also Crocker v Manhattan Life Ins. Co., 61 App Div 226, 230 (1st Dept 1901) ("as both parties have sought the equitable forum for an adjustment of their rights and interests, the court is possessed of ample power to direct such judgment as equity requires, and in the accomplishment of such purpose may direct such judgment as will do equity between the parties invoking its jurisdiction, and in order to accomplish this result it may award both legal and equitable relief, dependent solely upon the consideration as to what will do equity between them") (citations omitted); Bandike Assoc., Inc. v B.B.M. Realty Corp., 44 AD2d 622, 623 (3rd Dept 1974) ("where an aggrieved party shows that he is entitled to equitable relief, but the granting thereof appears to be impossible or impracticable, the court may award damages in lieu of the desired equitable remedy").
The court is persuaded by the logic of Crocker ( 61 App Div at 229), in which "the evidence appearing in the record, together with the findings, furnishe[d] a sufficient basis for the adjustment of all the rights and liabilities of the parties to th[e] action." In Crocker, the defendant's building wall "formed an overset" beginning at the roof of plaintiff's building. As there would have been great expense in removing the wall that did in fact enter onto the adjacent property, the plaintiff was awarded damages, including compensation for an operative easement, as monetary damages alone "would at no time place him in the enjoyment of his property." Id. at 229; see also id. at 237 ("[i]t is quite possible to embody in a judgment a protection of [a party's] right to maintain its wall on the payment of damages without requiring a grant of the easement . . ."); accord Corley v Spitzer, 235 App Div 703 (2nd Dept 1932).
Here, the evidence strongly suggests that neither equitable nor legal relief alone will suffice to resolve the matter among the parties. As both parties seek a solution and declaration with regard to the matter in controversy, and as the court is empowered to fashion a result that satisfactorily and fairly resolves the controversy between them, the court makes the orders, judgments, and declarations below.
It is hereby ORDERED that the motion of defendant H Eighth Avenue Associates for summary judgment dismissing the complaint and on its first counterclaim for a declaration is granted to the extent that the second cause of action for adverse possession is dismissed, and granted to the extent as adjudged and declared below, and is otherwise denied; and it is further
ORDERED that the deemed cross-motion of plaintiff Pennbus Realties, LLC for summary judgment on the complaint and a declaration for adverse possession is denied except to the extent as adjudged and declared below; and it is hereby
ADJUDGED and DECLARED that Pennbus Realties, LLC has not adversely possessed any portion of the parcel at 585 Eighth Avenue, New York, NY by virtue of certain chimney stacks running on the wall of the property at 575 Eighth Avenue, New York, NY which come to rest on the structural, or parapet, wall of the property at 585 Eighth Avenue, New York, NY; and it is further
ADJUDGED and DECLARED that Pennbus Realties, LLC, as owner of the property at 575 Eighth Avenue, New York, NY, shall, upon its own election, remove such chimney stacks such that they do not infringe upon the property or building at 585 Eighth Avenue, or pay to H Eighth Avenue Associates LLC, the owner of 585 Eighth Avenue, New York, NY, such damages as shall be determined upon hearing by a Special Referee; and it is further
ORDERED that any claim for monetary relief is hereby severed and continued; and it is further
ORDERED that the parties are instructed to appear in Part 1, 60 Centre Street, Room 325, New York, NY on December 7, 2010 at 9:30 a.m. for a status conference to inform the court regarding Pennbus Realties, LLC's election among the above-mentioned remedies.