Butler v. Ratner

• Decision Date: 28 July 1997
• Citation: 662 N.Y.S.2d 696,173 Misc.2d 783
• Parties: , 1997 N.Y. Slip Op. 97,471 Steven S. BUTLER, Plaintiff, v. Joseph RATNER, Defendant.
• Court: New York City Court

Page 696

662 N.Y.S.2d 696

173 Misc.2d 783, 1997 N.Y. Slip Op. 97,471

Steven S. BUTLER, Plaintiff, v. Joseph RATNER, Defendant.

City Court of New Rochelle.

July 28, 1997.

Steven S. Butler, pro se.

Joseph Ratner, pro se.

PRESTON S. SCHER, Judge.

In this strongly contested small claims action, plaintiff seeks recovery of $3,000.00 for the following:

"civil trespass to realty at [address deleted for publication] New Rochelle. Compensatory, nominal and punitive damages November 04, 1993."

Prior to trial, both sides advised the Court they wished to make motions, and the Court instructed them to submit same in writing.

Accordingly, plaintiff moves for summary judgment and defendant moves to dismiss the complaint.

The motions are decided as follows:

It appears that the facts are virtually undisputed.

Plaintiff is the former husband of defendant's wife. In connection with another litigation, between plaintiff and defendant's wife, defendant served his wife's reply affidavit personally on plaintiff at plaintiff's residence.

Plaintiff avers, and it is not denied by defendant, that defendant entered plaintiff's property despite:

".... having been told on 3 prior occasions never to do so...."

As noted, defendant does not deny that plaintiff told him not to enter onto plaintiff's property.

He claims, however that plaintiff does not have "the right to dictate how papers should have been served upon him"; that:

"Given that plaintiff filed the lawsuits against my wife, and that the CPLR specifically authorizes personal service of process and motion papers upon a party, my wife, as the defendant in the Supreme Court action, had the legal right to determine the method of service of court papers on plaintiff. To the extent that plaintiff did not like the method of service my wife chose, that should not give rise to a trespass action against the process server, i.e., me.

"If plaintiff wished to limit my wife's legal right to serve him with papers as specifically authorized by the CPLR, the burden was on him to make an appropriate application to the judge assigned to the Supreme Court action seeking this relief. His failure to do so cannot shift the burden to my wife for her compliance with the CPLR, which resulted in a manner of service which was contrary to the wishes of plaintiff. Under no circumstances should my wife's alleged failure to obtain a court order pursuant to CPLR 308(5) for an alternate method of service be the basis for a trespass action".

Defendant further claims that even though plaintiff "allegedly told me on prior occasions when I served court papers upon him not to enter his property," that "this argument is without any basis in law".

Defendant further claims that CPLR 2214(b) authorizes personal service, indeed, that CPLR 2214(b) "presumes" personal service, and that therefore he was within his rights to serve the plaintiff personally.

At the outset, it is to be noted that:

"Although an extreme remedy, summary judgment will be applied to disputes where the facts are undisputed (as in the case at bar) and are not subject to differing interpretation (Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610 [563 N.Y.S.2d 449 (2nd Dept.1990) ]; American Exp. Bank Ltd. v. Uniroyal Inc., 164 A.D.2d 275 [562 N.Y.S.2d 613 (1st Dept.1990) ], appeal denied 77 N.Y.2d 807 [569 N.Y.S.2d 611, 572 N.E.2d 52] )." Administrator of The Gruman Corp. Employee Investment Plan v. Kasten, Supreme, Suffolk, N.Y.L.J. 6/19/97 Pg. 35 Col. 1.

Here, as noted, the salient facts are not in dispute.

The sole question presented is whether or not plaintiff has stated a cause of action for trespass, and, if so, what, if any damages, he is entitled to.

It is HORNBOOK law that:

"The essence of a trespass to real property is injury to the right of possession. Any unauthorized entry upon the land of another constitutes a trespass, without regard to the amount of force used, and even though no damage is done, since at least nominal damage is always presumed from a trespass on land.

"At common law, each person's land was deemed to be enclosed, and every unauthorized entry into the close of another was a trespass, which necessarily carried with it some damage for which the trespasser was liable. Thus, under the common law one is not obliged to mark or fence the boundaries of his land, and a person entering thereon without permission, whether innocently or by mistake, is a trespasser.

"An unauthorized intruder upon land is liable for the consequences of the intrusion, regardless of whether the results could or should reasonably have been foreseen or whether the acts constituted negligence." 104 N.Y. Jur.2d, Trespass, Sec. 10 (Pg. 454).

See also: Malerba v. Warren, 108 Misc.2d 785, 438 N.Y.S.2d 936 (Sup.Suffolk 1981).

Based upon the foregoing, it is clear that defendant trespassed on plaintiff's real property.

Defendant's argument that he was somehow authorized by the CPLR to serve his wife's legal papers is, in the Court's view, without merit.

The CPLR sets up time periods and manner for service of affidavits. It offers different time periods for personal service, versus service by mail. It does not create a legal right to trespass on another's property.

Defendant's wife was under no obligation to serve her reply affidavit personally, rather than by mail. Moreover, since defendant was told not to enter plaintiff's property, nothing...