Hoffmann Investors Corp. v. Yuval

33 A.D.3d 511, 823 N.Y.S.2d 51

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 2006
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Mary Ann BriganttiHughes, J.), entered November 22, 2005, which granted defendant-respondent’s motion for an order cancelling a notice of pendency, with related relief, and for partial summary judgment dismissing that portion of the complaint seeking an injunction directing removal of a retaining wall and cessation of further work, unanimously affirmed, without costs.

There was no evidentiary support for a finding that plaintiff would suffer irreparable harm substantially outweighing injury the injunction would cause defendant-respondent (see Matter of Angiolillo v Town of Greenburgh, 21 AD3d 1101, 1104 [2005]). The record discloses no nonspeculative ground to support a finding that defendant’s rebuilt retaining wall presents a danger to plaintiff that would warrant mandating the expensive and difficult work required to remove the rebuilt wall and build yet a third wall. Upon weighing the relative circumstances, the motion court properly found that the encroachment of IV2 to 33A inches onto plaintiffs property is de minimis (see Generalow v Steinberger, 131 AD2d 634, 635 [1987], appeal dismissed 70 NY2d 928 [1987], and lv denied 70 NY2d 616 [1988]; Christopher v Rosse, 91 AD2d 768, 769 [1982]). With only plaintiffs claim for money damages remaining, the notice of pendency was properly cancelled (see Ola Contr. Co. v Guild Capital, 285 AD2d 382, 383 [2001]). Concur—Mazzarelli, J.E, Friedman, Nardelli, Williams and Malone, JJ.