Plaintiff: Sanchez & Polvetsky.
Defendant: Eric T. Schneiderman - Attorney General Audrey
P. SAITTA, J.
THE HONORABLE MATTHEW J. DRISCOLL, AS COMMISSIONER AND ON
BEHALF OF THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION,
THE STATE OF NEW YORK (hereinafter "the State
Defendants") having moved pursuant to CPLR 3211(a)(2) to
dismiss the Amended Complaint as against the State
Defendants, and the motion having come before the Court on,
January 12, 2017, and upon reading the Notice of Motion,
dated November 8, 2016 by Eric Schneiderman Attorney General
of the State of New York, attorney for the State Defendants,
and the Affirmation of Audrey V. Alexander, Esq., Assistant
Attorney General dated November 8, 2016, and the exhibits
annexed thereto, the Affidavit of Robert L. Adams, sworn to
November 4, 2016, and the exhibits annexed thereto, the State
Defendants' Memorandum of Law in Support, dated November
8, 2016; the Affirmation in Opposition of Jennifer
Polovetsky, Esq., of Sanchez and Polovetsky, PPLC, attorneys
for Plaintiff, dated December 1, 2016, Plaintiff's
Memorandum of Law in Opposition dated December 1, 2016; the
Reply Affirmation of Audrey V. Alexander Esq., dated December
7, 2016; and after argument of counsel and due deliberation
thereon, the State Defendants' motion is granted in part
and denied in part to the extent set forth below.
owns the property located at 470 Scott Avenue, Brooklyn New
York and claims that the State Defendants through its
contractor Defendant SKANSKA USA INC., (hereinafter
"SKANSKA"), has, without the Plaintiff's
permission, entered on its property in connection with the
construction of the new Kosciusko Bridge. Plaintiff alleges
that Defendants have stored equipment on its property, and
erected temporary anchor on its property, without permission.
Plaintiff also alleges that the State Defendants have blocked
access to its property and have caused flooding on its
SKAKNSA claims that Plaintiff granted permission for the
contractors to enter and use its property during the
construction. Defendants admit that the contractors have
constructed a temporary anchor that holds up part of the new
bridge structure and keeps it from moving while the rest of
the new structure is being constructed. One column and below
ground foundation for the temporary anchor is located on
Plaintiff's property and a second column and foundation
is located in the bed of Thomas Street.
SKANSKA has submitted an affidavit of its engineer Robert L
Adams, dated November 4, 2016, in which he states that
SKANSKA expects its use of Plaintiff's property to end in
December 2016. At this point Defendants have apparently
completed the work that required use of Plaintiff's
property. Plaintiff alleges that while the above ground
portion of the column has been removed, the below grade
foundation has not been removed.
commenced this action and sought a temporary restraining
order and preliminary injunction, enjoining the Defendants
from entering, storing any material, or conducting any
construction work on the property. After a hearing, on July
29, and August 1, 2016, the motion for a preliminary
injunction was settled by an agreement enjoining Defendants
from removing a retaining wall on the property but which did
not require Defendants to immediately quit the property.
Plaintiff filed an amended complaint, dated September 26,
2016, which pled three causes of action. The first cause of
action is against all Defendants and alleged that they
"unlawfully trespassed and illegally appropriated the
property via inverse condemnation in this de facto eminent
second cause of action is against all Defendants, and alleged
that they created a nuisance by changing the grade on the
premises and causing flooding on to the premises.
third cause of action is against Defendants SKANSKA USA INC,
KIEWIT INFRASTRUCTURE CO., AND E.C.C.O. ENTERPRISES, INC.
only, and not the State Defendants, and seeks $10, 000 in
damages for trespass.
respect to the first cause of action, Plaintiff seeks a
permanent injunction barring all Defendants from continuing
to trespass upon its property and requiring them to remove
all material, equipment and personnel from the property,
including the portions of the street beds Plaintiff claims it
respect to the second cause of action, Plaintiff seeks a
permanent injunction against all Defendants directing them to
abate the alleged nuisances caused by their activities and
barring them from interfering with Plaintiff's use and
enjoyment of its property.
respect to the third cause of action, Plaintiff s seeks
monetary damages of $10, 000, 000 ...