Umlas v. Britton

222 A.D.3d 1031

200 N.Y.S.3d 121 (Mem)

Andrea UMLAS, respondent,

v.Christopher BRITTON, et al., appellants.

2021–07680

Index No. 610385/18

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

Argued—September 5, 2023

December 27, 2023

Samuel E. Kramer, New York, NY, for appellants.

Harvey A. Arnoff, Riverhead, NY, for respondent.

FRANCESCA E. CONNOLLY, J.P., ANGELA G. IANNACCI, PAUL WOOTEN, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action, inter alia, for injunctive relief, the defendants appeal from an order of the Supreme Court, Suffolk County (Vincent J. Martorana, J.), dated September 21, 2021. The order denied the defendants’ motion for summary judgment dismissing the complaint and pursuant to CPLR 603 to sever their counterclaims.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendants’ motion which were for summary judgment dismissing the first and third causes of action, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, with costs to the defendants.

In May 2018, the plaintiff commenced this action against the defendants, the owners of adjacent property, inter alia, for injunctive relief and to recover damages based upon the defendants allegedly installing utility wires below ground on a portion of the plaintiff's property without her permission. Thereafter, the defendants moved for summary judgment dismissing the complaint and pursuant to CPLR 603 to sever their counterclaims alleging, among other things, that the plaintiff damaged their property. In an order dated September 21, 2021, the Supreme Court denied the defendants’ motion. The defendants appeal.

In the first cause of action, the plaintiff sought an injunction directing the removal of the underground utility wires from her property. "An action pursuant to RPAPL 871 requires, inter alia, a showing that an alleged encroachment was not de minimis" ( Krakovski v. Stavros Assoc., LLC, 173 A.D.3d 1146, 1149, 103 N.Y.S.3d 553 ). Here, the defendants established, prima facie, that the encroachment was de minimis, and thus, not sufficient to warrant injunctive relief, as the wires were buried in a portion of the plaintiff's property that was only approximately two square feet, consisting of, at most, 1/2118 of the plaintiff's total property (see Eastside Exhibition Corp. v. 210 E. 86th St. Corp., 18 N.Y.3d 617, 624, 942 N.Y.S.2d 19, 965 N.E.2d 246 ; Krakovski v. Stavros Assoc., LLC, 173 A.D.3d 1146, 103 N.Y.S.3d 553 ; Averaimo v. Tavares, 93 A.D.3d 745, 746, 941 N.Y.S.2d 629 ). In opposition to that prima facie showing, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the first cause of action.

Contrary to the defendants’ contention, however, they failed to establish their prima facie entitlement to judgment as a matter of law dismissing the second cause of action, which was, in effect, to recover for property damage and trespass, based upon their unsubstantiated and conclusory assertions that the plaintiff's "property has not been damaged at all" or was not damaged in the amount sought in the...