Submitted - February 13, 2018
& Chaikin, PLLC (Nicole R. Kilburg, New York, NY, of
counsel), for appellants.
N. Napoli, Commack, NY, for respondents.
C. BALKIN, J.P. LEONARD B. AUSTIN SANDRA L. SGROI VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to recover damages for private nuisance, trespass, and
negligence, and for injunctive relief, the plaintiffs appeal
from three orders of the Supreme Court, Suffolk County (Paul
J. Baisley, Jr., J.), dated August 17, 2015, January 19,
2016, and May 9, 2016, respectively. The order dated August
17, 2015, insofar as appealed from, in effect, granted that
branch of the defendants' motion which was pursuant to
CPLR 3211(a)(7) to dismiss the complaint. The order dated
January 19, 2016, denied the plaintiffs' motion, in
effect, for leave to replead, and granted the defendants'
cross motion to impose sanctions pursuant to 22 NYCRR
130-1.1. The order dated May 9, 2016, awarded the defendants
costs and an attorney's fee pursuant to 22 NYCRR 130-1.1
in the sum of $2, 025.
that the order dated August 17, 2015, is affirmed insofar as
appealed from, without costs or disbursements; and it is
further, ORDERED that the order dated January 19, 2016, is
reversed, on the facts and in the exercise of discretion,
without costs or disbursements, the plaintiffs' motion,
in effect, for leave to replead is granted, the
defendants' cross motion to impose sanctions pursuant to
22 NYCRR 130-1.1, is denied, and the order dated May 9, 2016,
is vacated; and it is further, ORDERED that the appeal from
the order dated May 9, 2016, is dismissed as academic,
without costs or disbursements, in light of our determination
on the appeal from the order dated January 19, 2016.
plaintiffs and the defendants are owners, respectively, of
adjacent parcels of real property, which are separated by a
retaining wall located on the plaintiffs' property. The
plaintiffs commenced this action against the defendants for
injunctive relief and to recover damages for private
nuisance, trespass, and negligence. The gravamen of the
complaint was that the retaining wall was in danger of
collapsing due to the "load, pressure, weight and
force" of the defendants' property, which was higher
in elevation than the plaintiffs' property. The
defendants moved, inter alia, pursuant to CPLR 3211(a)(7) to
dismiss the complaint. In an order dated August 17, 2015, the
Supreme Court, in effect, granted that branch of the motion.
plaintiffs subsequently moved, in effect, for leave to
replead, to include allegations of specific conduct allegedly
committed by the defendants that they claimed constituted a
private nuisance and trespass, and was negligent. The
defendants cross-moved to impose sanctions pursuant to 22
NYCRR 130-1.1. In an order dated January 19, 2016, the
Supreme Court denied the plaintiffs' motion and granted
the defendants' cross motion. In an order dated May 9,
2016, the Supreme Court awarded the defendants costs and an
attorney's fee pursuant to 22 NYCRR 130-1.1 in the sum of
$2, 025. The plaintiffs appeal from all three orders.
agree with the Supreme Court that the allegations in the
complaint were insufficient to set forth causes of action
sounding in a private nuisance, negligence, and trespass.
"A defendant is subject to liability for a private
nuisance if the defendant's conduct is a legal cause of
the invasion of an interest in the private use and enjoyment
of land, and such invasion is (1) intentional and
unreasonable, (2) negligent or reckless, or (3) actionable
under the rules governing liability for abnormally dangerous
conditions or activities" (Trulio v Village of
Ossining, 153 A.D.3d 577, 579; see Copart Indus. v
Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 569).
Here, the complaint did not allege any conduct on the part of
the defendants which interfered with the use and enjoyment of
the plaintiffs' land (see Wheeler v Del Duca,
151 A.D.3d 1005, 1006; Ward v City of New York, 15
A.D.3d 392, 393). Similarly, the complaint did not allege
facts which, if proven, would establish that the defendants
breached a duty of care to maintain their property, so as to
set forth a cognizable cause of action alleging negligence
(see generally Leon v Martinez, 84 N.Y.2d 83,
agree with the Supreme Court that the allegations in the
complaint were insufficient to state a cause of action for
trespass. "The essential elements of a cause of action
sounding in trespass are the intentional entry onto the land
of another without justification or permission"
(Reyes v Carroll, 137 A.D.3d 886, 888; see
Boring v Town of Babylon, 147 A.D.3d 892, 893).
"The invasion of, or intrusion upon, the property
interest 'must at least be the immediate or inevitable
consequence of what [the defendant] willfully does, or which
he does so negligently'" (Behar v Quaker Ridge
Golf Club, Inc., 118 A.D.3d 833, 835, quoting
Phillips v Sun Oil Co., 307 NY 328, 331). Here, the
plaintiffs failed to allege an intentional entry onto the
plaintiffs' property, as the complaint merely claimed
that the defendants' property was causing the
plaintiffs' wall to lean.
we agree with the Supreme Court's determination that the
complaint failed to state a cause of action.
However, the court improvidently exercised its discretion in
denying the plaintiffs' motion, in effect, for leave to
replead (see generally Clark v Pfizer, Inc., 64
A.D.3d 536; Janssen v Incorporated Vil. of Rockville
Ctr., 59 A.D.3d 15, 27). The standard to be applied on
such a motion "is consistent with the standard governing
motions for leave to amend pursuant to CPLR 3025"
(Janssen v Incorporated Vil. of Rockville Ctr., 59
A.D.3d at 27). In particular, such motions "should be
freely granted absent prejudice or surprise to the opposing
party, unless the proposed amendment is devoid of merit or
palpably insufficient" (id.; see Rabos v R&R
Bagels & Bakery, Inc., 100 A.D.3d 849, 853).
proposed amended complaint alleged that the defendants had
(1) engaged in "digging, excavating, grading and
altering the soil, past the property line with [the]
plaintiffs' property and abutting [the plaintiffs']
property and wall, " (2) planted bushes, shrubs, and
trees, and added significant amounts of mulch on the
plaintiffs' property, near the property line, and along
the plaintiffs' wall, and (3) excessively watered the
location where the work was performed. The amended complaint
further alleged that the "lateral load and pressure has
been increased as a result of the planting of trees, bushes,
shrubs and plants and the lack of drainage" so as to
damage the plaintiffs' retaining wall. The complaint
alleges that this conduct was negligent, and that it
constituted a private nuisance and trespass. Contrary to the
defendants' contention, these amended causes of action
were neither palpably insufficient nor patently devoid of
merit (see generally Behar v Quaker Ridge Golf Club,
Inc., 118 ...