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FMC Co. v. Driscoll

Supreme Court, Richmond County

January 31, 2017

FMC Company, Plaintiff,
v.
The Honorable Matthew J. Driscoll, as Commissioner and on Behalf of the New York State Department of Transportation, the State of New York, Skanska USA Inc., Kiewit Infrastructure Co., and E.C.C.O. Enterprises, Inc., Defendants.

          For Plaintiff: Sanchez & Polvetsky.

          For Defendant: Eric T. Schneiderman - Attorney General Audrey Alexander, Esq.

          WAYNE P. SAITTA, J.

         Defendants, 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.

         Plaintiff, 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 property.

         Defendant 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.

         Defendant 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.

         Plaintiff 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.

         Thereafter, 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 domain taking".

         The 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.

         The 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.

         With 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 owns.

         With 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.

         With respect to the third cause of action, Plaintiff s seeks monetary damages of $10, 000, 000 ...


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