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OVERHOFF v. GINSBURG DEVELOPMENT
May 16, 2001
MARGARET OVERHOFF, PLAINTIFF,
GINSBURG DEVELOPMENT, L.L.C., NORTHEAST DRILLING, INC., NORTHBROOK CONTRACTING CORP., THE VILLAGE OF DOBBS FERRY, MICHELLE BONSTEEL, MARGARET SLAVIN, AND "RICHARD DOE," DEFENDANTS.
The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR
Plaintiff Margaret Overhoff brings suit against Ginsburg
Development, L.L.C. ("GDC"), Northeast Drilling, Inc.
("Northeast"), and Northbrook Contracting Corp. ("Northbrook")
for trespass, negligence, intentional infliction of emotional
distress, and against the Village of Dobbs Ferry ("Dobbs Ferry"),
Building Inspector Michelle Bonsteel, Village Administrator
Margaret Slavin, and "Richard Doe" for violation of her
constitutional rights under 42 U.S.C. § 1983, as a result of
Village officials' failure to stop GDC from building a wall that
encroached on her property. This action was commenced in the
Supreme Court of the State of New York, Westchester County, on
June 8, 2000. It was timely removed to this Court on August 17,
Defendants Dobbs Ferry, Bonsteel, Slavin, and "Richard Doe"
move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff's §
Plaintiff Margaret Overhoff owns property at 33 Livingston
Avenue in Dobbs Ferry, New York. For many years, the property
next door was an undeveloped area that developers sought to use
for a housing cluster. After conducting an environmental review
that lasted from 1989 to 1995, the Village Board approved a plan
to develop the adjacent lot on December 3, 1996. The plan
required the developer to present and to seek approval of
construction plans, and to detail every aspect of construction.
On August 21, 1998, the property was sold to the current owner,
Ginsburg Development L.L.C. ("GDC"). During the period from the
acquisition of the property through approximately June 1999, GDC
presented and secured various approvals from the Village to amend
the 1996 resolution. On June 17, 1999, GDC's consulting engineer
sent a set of plans to GDC (and copied them to the Village)
indicating that a retaining wall was to be constructed in a way
that could encroach on plaintiff's property.
The construction on the site — now called Livingston Ridge —
began in earnest in early 1999.
In April 1999, one of the Village consulting engineers noted
that the GDC's site improvements did not conform to approved
plans and encroached on the property of a neighbor to the south —
Dr. Christine Sekaer. As a result of GDC's work, a slope failure
had adversely impacted Sekaer's property and presented a safety
risk. Building Inspector Bonsteel issued a stop work order and a
imposed a requirement on GDC to secure an easement for any work
on the adjacent property. On April 7, 1999, Bonsteel imposed
several restrictions on GDC's work, including a requirement that
GDC provide the Village with "copies of easements and/or
agreements with neighboring property owners for work to be
conducted on their premises." (Overhoff Aff. at Ex. D.)
On April 14, 1999, one of the Village consultants, TRC Raymond
Keyes Associates ("RKA"), recommended that work resume, provided
that (among other requirements) it was done under the supervision
of engineers Carlin Simpson & Associates, and that there would be
no encroachment into adjacent properties without proper easement
agreements in place. RKA also recommended putting up temporary
walls to secure a building on GDC's property that was subject to
unstable slope conditions.
In June 1999, GDC sought to redirect a sewer line to avoid
running it through a retaining wall. In order to do so, it was
necessary to encroach on plaintiff's property. GDC therefore
sought to negotiate an easement with the plaintiff for temporary
access onto the plaintiff's property to install the sewer line,
and for the right to make subsurface improvements within the
easement area. Plaintiff refused GDC's offer of $20,000 for such
an easement, and the offer later was withdrawn. As a result, GDC
informed the Village on June 18, 1999 that:
In the event that Ms. Overhoff is unwilling to
grant this permission, we will have no recourse
except to place the sewer line on the Livingston
Ridge property, as originally approved by the
Village. We will install a temporary connection and
complete the permanent connection as the retaining
walls are completed. We will not trespass on Ms.
(Overhoff Aff. at Ex. E.)
By letter of July 7, 1999, Slavin wrote to Mark Ginsburg of GDC
to express her concerns that site inspections were not being made
at Livingston Ridge, pursuant to the site plan resolution. She
wrote: "The Village's position on this matter is very simple. It
was condition [sic] of site plan approval that a geotechnical
engineer provide on site inspections. GDC is not presently living
up to that condition." (Id. at Ex. G.)
On July 12, 1999, at Bonsteel's request, RKA visited the
Livingston Ridge site, and observed that three two-tiered stone
retaining walls had been constructed. They noted that "the
transition slope encroaches into the adjacent property to the
south of the . . . foundation" (Id. at Ex. H.), and that the work
deviated from the site plans that were on file with the Village.
(Id.) RKA further stated that "[a]lthough discussions with . . .
GDC indicated that temporary work easement agreements with the
adjacent property owner were secured, it is our understanding
that the Village had no knowledge of this transaction." (Id.)
After reviewing GDC design drawings, by letter of July 28, 1999
to Village Administrator Margaret Slavin, RKA concluded that the
GDC walls "could possibly encroach upon adjacent properties."
(Id. at Ex. K.) The letter noted that it was incumbent on an
adjacent property owner to permit the contractor to enter on the
property for the purpose of inspection, installation of sheeting,
bracing, or underpinning as required to protect the adjacent
property. However, "Martin Ginsburg has indicated that he has no
agreement with the owner of the adjacent property to allow
encroachment, temporary or permanent, resulting from . . .
construction of the Livingston Ridge Project." ...