Ellenberg v. Brach

• Decision Date: 01 June 1982
• Parties: Harold ELLENBERG, Respondent-Appellant, v. Samuel BRACH, Appellant-Respondent, et al., defendants.
• Court: New York Supreme Court — Appellate Division

Page 589

450 N.Y.S.2d 589

88 A.D.2d 899

Harold ELLENBERG, Respondent-Appellant, v. Samuel BRACH, Appellant-Respondent, et al., defendants.

Supreme Court, Appellate Division,

Second Department.

June 1, 1982.

Suozzi, English & Cianciulli, P. C., Mineola (Brian Michael Seltzer, Mineola, of counsel), for appellant-respondent.

Berger & Kramer, New York City (Joshua Roth, New York City, of counsel), for respondent-appellant.

Before MANGANO, J. P., and GULOTTA, O'CONNOR and BRACKEN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for an injunction, in which a judgment was entered September 19, 1977, inter alia, enjoining defendant Brach from interfering with plaintiff's rights under an easement to landscape, defendant Brach appeals from so much of an order of the Supreme Court, Queens County dated April 19, 1982, as granted plaintiff's application to hold him in contempt of court for violating the terms of the judgment. Plaintiff cross-appeals from so much of the same order as, in effect, limited the fine to be imposed to the amount spent by him in his landscaping endeavors in 1979. The appeals bring up for review so much of a further order of the same court, entered April 20, 1982, as upon reargument, adhered to the original determination.

Appeals from the order dated April 19, 1982, dismissed. That order was superseded by the order granting reargument.

Order entered April 20, 1982, modified, on the law, by adding thereto a provision that plaintiff is entitled to recover his actual losses, without being limited to the losses incurred in 1979. As so modified, order affirmed insofar as reviewed.

Plaintiff is awarded one bill of $50 costs and disbursements.

Plaintiff and defendants are neighbors in Queens County. Defendants' premises are improved, in part, with a butcher shop of which defendant Brach is part owner and operator. Adjacent to the rear of the butcher shop, and directly to the east of it, is a rectangular parcel of land, also owned by defendants. This parcel, which runs north and south, serves as a driveway and as a means of access to the rear of the shop. Immediately to the east of the driveway is another rectangular plot of land (the servient parcel), running in a north and south direction, also owned by defendants, but subject to an easement in plaintiff's favor. Plaintiff's parcel of land (the dominant parcel), improved by a two-story residence, lies adjacent to and immediately to the east of the servient parcel.

An easement was created in 1941 which provided that the owner of plaintiff's parcel shall have the right of ingress and egress over the servient parcel and the right to landscape the servient parcel. The easement also provided that no buildings or structures would be erected on the parcel.

Until 1974, the servient parcel was fully landscaped by plaintiff with trees, bushes and plants, including a thick hedge, approximately four feet high, along its edge and abutting the driveway parcel. The landscaping thus provided a buffer between the dominant parcel and the butcher shop with its driveway.

In 1974, defendant Brach desired to widen his driveway by two feet to accommodate larger trucks. In October, 1974, although plaintiff had refused permission, Brach ripped out the hedges abutting the driveway, chopped down several trees, and bulldozed a portion of the servient parcel in order to go through with the driveway expansion. Heavy trucks rode over the parcel, so plaintiff found it impossible to maintain landscaping upon it. Plaintiff then commenced this action seeking damages, a declaration of his rights under the easement, and a permanent injunction against interference with the easement. By judgment entered September 19, 1977 in the Supreme Court, Queens County, it was declared, inter alia, that plaintiff "has an easement to landscape" the servient parcel. Defendants, "their agents, servants, employees, invitees and licensees", were "permanently enjoined from interfering with plaintiff's rights under the easement * * * and from interfering with, removing, destroying, driving over or disturbing any trees, shrubs, bushes, lawns or other plantings which plaintiff has placed or shall hereinafter place" upon the servient parcel.

In the fall of 1978, plaintiff began to re-landscape the servient parcel. No longer having the hedge and several trees, plaintiff purchased 14 railroad ties and placed them end to end along the portion of the servient parcel abutting the driveway. He also placed large wooden planters on the northwest and southwest corners. Plaintiff avered that the ties were laid to prevent encroachment upon the servient parcel by the delivery trucks using the driveway, as well as to hold the soil and plants.

During the winter of 1978-1979, the railroad ties kept getting banged out of place by the truck traffic. Plaintiff secured the ties by inserting iron rods into them in order to anchor them. A few inches of iron protruded above the ties in order to discourage trucks from driving over them. An additional row of iron rods were driven into the ground behind the ties, and ribbons were tied along the tops of the rods to insure visibility.

In April, 1979, plaintiff began recultivation. This included planting 54 multi-flora rose bushes behind the ties. On May 25, 1979, defendant Brach, claiming that the ties were "dangerous and hazardous" and "violathe easement," employed a crew of workers and removed the ties and rods. Within a few days, trucks servicing the butcher shop began driving over the edge of the servient parcel and dissipating the new topsoil. On June 3, 1979 plaintiff again reset the railroad ties. On August 20, 1979, after plaintiff returned home from a lengthy vacation, he found that Brach had again removed the ties. By the fall of 1979, 40 of the rose bushes had been destroyed by truck...