Pak v. 5 Harrison Associates, Ltd.

43 A.D.3d 807, 841 N.Y.S.2d 779

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 27, 2007
• Status: Published

Opinion

Order, Supreme Court, New York County (Louis B. York, J.), entered July 10, 2006, which, in an action for infringement of an easement of light and air, granted defendant’s motion to dismiss the complaint, unanimously affirmed, with costs.

The IAS court properly dismissed this action on the ground that it was not commenced within two years after defendant’s building was issued a certificate of occupancy (RPAPL 2001). RPAPL 2001 governs actions, such as this, to enforce negative easements restricting use of land with respect to structures that may be erected thereon, and, in that limited context, effectively, albeit not expressly, overrides the common-law doctrine of continuous trespass (see Rep of Law Rev Commn for 1963, reprinted in 1963 McKinney’s Session Laws of NY, at 1814; see also Rahabi v Morrison, 81 AD2d 434, 439-440 [1981]), on which plaintiff relies. Concur—Mazzarelli, J.P., Saxe, Friedman, Marlow and Williams, JJ.