Koether v. Generalow

• Decision Date: 06 March 1995
• Citation: 213 A.D.2d 379,623 N.Y.S.2d 328
• Parties: Karl KOETHER, et al., Appellants, v. Olga GENERALOW, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 328

623 N.Y.S.2d 328

213 A.D.2d 379

Karl KOETHER, et al., Appellants, v.Olga GENERALOW, Respondent.

Supreme Court, Appellate Division Second Department.

March 6, 1995.

Kleinman, Saltzman & Goodfriend, P.C., West Nyack (Ronald W. Weiner, of counsel), for appellants.

Hurwitz & Hurwitz, P.C., New City(Martin Hurwitz, of counsel), for respondent.

Before BALLETTA, J.P., and O'BRIEN, THOMPSON and RITTER, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for trespass to real property, the plaintiffs appeal, (1) as limited by their brief, from so much of an order of the Supreme Court, Rockland County(Weiner, J.), dated October 29, 1993, as denied their motion for summary judgment and to dismissthe defendant's counterclaim, and (2) from an order of the same court dated March 28, 1994, which denied their motion for reargument.

ORDERED that the appeal from the order dated March 28, 1994, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated October 29, 1993, is modified by (1) deleting the provision thereof which denied that branch of the plaintiffs' motion which was for summary judgment on their second cause of action and substituting therefor a provision granting that branch of their motion, and (2) deleting the provision thereof which denied that branch of the plaintiffs' motion which was to dismiss the defendant's counterclaim and substituting therefor a provision dismissing so much of the counterclaim which is to recover damages for the encroachment of her property by the plaintiffs' driveway and retaining wall; as so modified, the order is affirmed insofar as appealed from; and it is further,

ORDERED that the plaintiffs are awarded one bill of costs.

The instant action represents the second round in a boundary dispute between two adjacent landowners in Nyack.In a previous court action between the defendantOlga Generalow and the plaintiffs' predecessors in title, this court held that while a driveway and a retaining wall built by the plaintiffs' predecessors had encroached across the property line shown on Generalow's survey, "title to all but 8.4 inches of that property had passed to the [plaintiffs' predecessors] by virtue of their adverse possession of the land"( Generalow v. Steinberger, 131 A.D.2d 634, 517 N.Y.S.2d 22).Moreover, it was also held that the 8.4 inch encroachment was de minimis and that Generalow was, therefore, not entitled to an injunction compelling the plaintiffs' predecessors to remove the wall (see, Generalow v. Steinberger, supra ).The plaintiffs commenced the instant action after Generalow placed a metal stake into their driveway and painted a yellow line down their driveway purportedly to represent her property line.In addition, Generalow removed a wooden fence that she alleged the plaintiffs had constructed on her side of the property line.

On appeal, the plaintiffs contend that the prior litigation in Generalow v....