Brown v. Nelson

Appellate Division of the Supreme Court of New York

Brown v. Nelson

55 A.D.3d 317, 864 N.Y.S.2d 34

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 2, 2008

StatusPublished

This text of 55 A.D.3d 317 (Brown v. Nelson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. Nelson, 55 A.D.3d 317, 864 N.Y.S.2d 34 (N.Y. Ct. App. 2008).

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Opinion

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered October 10, 2007, which, after a nonjury trial, granted plaintiff’s motion for a mandatory injunction and directed defendant to demolish and remove a brick garage wall and a skylight on her property, unanimously modified, on the law, to the extent of vacating the injunction in favor of plaintiff as to the skylight, and otherwise affirmed, without costs.

[318]*318The trial court’s issuance of a mandatory injunction directing defendant to remove the garage wall was proper. The evidence demonstrates that the garage wall encroached on plaintiff’s property by several inches, and defendant failed to establish that she had obtained a prescriptive easement. The encroachment interfered with plaintiffs full use and enjoyment of his property, and defendant offered no evidence that removal of the garage wall would cause undue hardship to her. The evidence establishes that the benefit to plaintiff if the injunction were granted and the irreparable harm to him if the injunction were not granted substantially outweighed the injury to defendant if the injunction were granted (see Matter of Angiolillo v Town of Greenburgh, 21 AD3d 1101, 1104 [2005]). We reject defendant’s argument that plaintiff’s claim regarding the wall is time-barred. Real Property Actions and Proceedings Law § 611 does not apply to this case because there is no abutting wall on plaintiffs property. Moreover, defendant waived the defense by failing to plead it or move for dismissal on that ground (CPLR 3211 [e]).

However, we find that the injunction mandating removal of the skylight was not warranted. Plaintiffs own expert testified unequivocally that after the skylight was moved in response to the Department of Building’s notice of violation, it no longer encroached on plaintiffs property.

We have considered defendant’s remaining contentions and find them unavailing. Concur—Tom, J.E, Mazzarelli, Friedman, Williams and Moskowitz, JJ.

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Order, Supreme Court, New York County (Milton A. Tingling, J.), entered October 10, 2007, which, after a nonjury trial, granted plaintiff’s motion for a mandatory injunction and directed defendant to demolish and remove a brick garage wall and a skylight on her property, unanimously modified, on the law, to the extent of vacating the injunction in favor of plaintiff as to the skylight, and otherwise affirmed, without costs.

[318]*318The trial court’s issuance of a mandatory injunction directing defendant to remove the garage wall was proper. The evidence demonstrates that the garage wall encroached on plaintiff’s property by several inches, and defendant failed to establish that she had obtained a prescriptive easement. The encroachment interfered with plaintiffs full use and enjoyment of his property, and defendant offered no evidence that removal of the garage wall would cause undue hardship to her. The evidence establishes that the benefit to plaintiff if the injunction were granted and the irreparable harm to him if the injunction were not granted substantially outweighed the injury to defendant if the injunction were granted (see Matter of Angiolillo v Town of Greenburgh, 21 AD3d 1101, 1104 [2005]). We reject defendant’s argument that plaintiff’s claim regarding the wall is time-barred. Real Property Actions and Proceedings Law § 611 does not apply to this case because there is no abutting wall on plaintiffs property. Moreover, defendant waived the defense by failing to plead it or move for dismissal on that ground (CPLR 3211 [e]).

However, we find that the injunction mandating removal of the skylight was not warranted. Plaintiffs own expert testified unequivocally that after the skylight was moved in response to the Department of Building’s notice of violation, it no longer encroached on plaintiffs property.

We have considered defendant’s remaining contentions and find them unavailing. Concur—Tom, J.E, Mazzarelli, Friedman, Williams and Moskowitz, JJ.

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Bluebook (online)

55 A.D.3d 317, 864 N.Y.S.2d 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-nelson-nyappdiv-2008.

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