Crystal Ann Realty, Inc. v. BNH Partners, LLC

2023 NY Slip Op 30054(U)

CRYSTAL ANN REALTY, INC., Plaintiff, v. BNH PARTNERS, LLC, PAUL GANJIAN, BUBBLE POP LAUNDROMAT, INC. Defendant.

Index No. 155979/2022, MOTION SEQ. No. 001

Supreme Court, New York County

January 9, 2023

Unpublished Opinion

PRESENT: HON. SUZANNE ADAMS Justice

DECISION + ORDER ON MOTION

Suzanne Adams Judge:

The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12, 13, 14 were read on this motion to/for _JUDGMENT - DEFAULT.

Upon the foregoing documents, it is ordered that plaintiffs motion is granted on default. Plaintiff is the owner of property located at located at 343 E. 115^th Street, New York, New York, which abuts the property owned by defendant BNH Partners, LLC ("BNH"). Plaintiff alleges that defendants, without plaintiffs knowledge or consent encroached upon the property with a structure made out of cinderblocks and have ignored plaintiffs requests to remove said encroachment. Plaintiff now moves against defendants Bubble Pop Laundromat, Inc. ("Bubble Pop") and BNH for default judgment pursuant to CPLR § 3215, and pursuant to RPAPL § 871 declaring that said defendants are currently trespassing on plaintiffs aforesaid real property and directing defendants to remove the encroachment at issue from the property. Plaintiff also seeks monetary damages. Defendants have not answered or otherwise moved in this action or submitted opposition to this motion.

Under RPAPL § 871, "An action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land. Nothing herein contained shall be construed as limiting the power of the court in such an action to award damages in an appropriate case in lieu of an injunction or to render such other judgment as the facts may justify". To prevail on a cause of action for ejectment, a plaintiff must establish that "(1) it is the owner of an estate in tangible real property, (2) with a present or immediate right to possession thereof, and (3) the defendant is in present possession of the estate". Noamex, Inc, v Domsey Worldwide, Ltd., 198 A.D.3d 817,819. In order to obtain injunctive relief pursuant to RPAPL 871, a party is "required to demonstrate not only the existence of [an encroachment], but that the benefit to be gained by compelling its removal would outweigh the harm that would result to the [the encroaching party] from granting such relief'. Kimball v. Bay Ride United Methodist Church, 157 A.D. 3d. 877. 878.

The moving affidavit of James J. Pisacanno, an officer of plaintiff, states that plaintiff exclusively owns the property and further details defendants' encroachment upon plaintiff s use and enjoyment of its own property and annexes proof as to its ownership. Defendants have not submitted opposition to the relief requested on this motion. As such, plaintiffs motion is granted, on default.

Accordingly it is hereby

ORDERED...