Merling v. Ash Dev., LLC

198 A.D.3d 743

156 N.Y.S.3d 257

Esther MERLING, appellant,

v.ASH DEVELOPMENT, LLC, et al., respondents.

2018–15134

Index No. 719085/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—May 4, 2021

October 13, 2021

Klein Slowik, PLLC, New York, N.Y. (Christopher M. Slowik of counsel), for appellant.

Rosenberg Calica & Birney, LLP, Garden City, N.Y. (Robert M. Calica of counsel), for respondents.

CHERYL E. CHAMBERS, J.P., COLLEEN D. DUFFY, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the plaintiff owns certain real property containing a subterranean window well under the doctrine of adverse possession and that the defendants’ easement over the westerly side of the plaintiff's residence is extinguished, the plaintiff appeals from an order of the Supreme Court, Queens County (Rudolph E. Greco, Jr., J.), dated December 24, 2018. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was for a preliminary injunction enjoining the defendants from destroying or disturbing the subterranean window well and performing construction operations on or under the westerly side of the plaintiff's residence.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for a preliminary injunction enjoining the defendants from destroying or disturbing the subterranean window well and performing construction operations on or under the westerly side of the plaintiff's residence is granted; and it is further,

ORDERED that the matter is remitted to the Supreme Court, Queens County, for the posting by the plaintiff of an undertaking in the amount of $1 million pursuant to CPLR 6312(b) in accordance with this determination and for further proceedings consistent herewith.

In December 2018, the plaintiff commenced this action against the defendant Ash Development, LLC (hereinafter Ash), a general contractor and developer, as well as the defendants Medhi Dayan, also known as Morris Dayan, and B Sosa Enterprises Corp., general contractors for Ash, seeking declaratory and related relief arising out of a dispute between the plaintiff and the defendants with respect to the ownership and use of certain real property in Queens. The plaintiff alleged that she is the owner of a two-story single-family residence and that Ash owns certain real property abutting her property. According to the plaintiff, in 2018, the defendants demolished a building which shared a party wall with her residence. The plaintiff alleged that the former party wall, which was shared by her residence and the now-demolished building, still constitutes the westerly wall of her residence. According to the plaintiff, the defendants began excavating, shoring, and underpinning the foundation of that westerly wall in furtherance of their plan to build a separate eight-story residential building. The plaintiff alleged that the defendants did not ask for or receive her permission to perform such construction operations on or under the westerly side of her residence, and that the defendants contended that the easement that ran with the party wall gave them the right to undertake such operations without seeking the plaintiff's permission or consent.

Upon commencing the action, the plaintiff moved, inter alia, for a preliminary injunction enjoining the defendants from destroying or disturbing a subterranean window well that she had built that crossed over the property line onto the defendants’ property and from performing construction operations on or under the westerly side of her residence until the conclusion of the action. In an order dated December 24, 2018, the Supreme Court, among other things, denied that branch of the plaintiff's motion (hereinafter the December 2018 order).

The plaintiff appealed from the December 2018 order, then moved in this Court, inter alia, to enjoin the defendants, or anyone acting on their behalf, from performing construction work which encroaches upon the plaintiff's property or destroys or disturbs the subterranean window well appurtenant to the plaintiff's property during the pendency of the appeal. In a decision and order on motion dated February 1, 2019, this Court granted those branches of the plaintiff's motion on condition that the plaintiff post an undertaking in an amount to be fixed by the Supreme Court (hereinafter the first undertaking). The Supreme Court thereafter fixed the amount of that first undertaking at $1 million. The amount of the undertaking is the subject of a related appeal (see Merling v. Ash Development, LLC, 198 A.D.3d 756, 152 N.Y.S.3d 631 [Appellate Division Docket No. 2019–07035 ]), which this Court has dismissed as academic on the ground that the requirement to post that first undertaking, which was imposed as a condition of this Court's grant of a...