Leavitt Enter., Inc. v. Two Fulton Square, LLC, 2018–14389

CourtNew York Supreme Court Appellate Division
Citation181 A.D.3d 662,120 N.Y.S.3d 363
Decision Date11 March 2020
Parties LEAVITT ENTERPRISE, INC., et al., Appellants, v. TWO FULTON SQUARE, LLC, et al., Respondents.
Docket Number2018–14389,Index No. 702971/18

181 A.D.3d 662
120 N.Y.S.3d 363

LEAVITT ENTERPRISE, INC., et al., Appellants,
v.
TWO FULTON SQUARE, LLC, et al., Respondents.

2018–14389
Index No. 702971/18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—December 3, 2019
March 11, 2020


120 N.Y.S.3d 364

Kevin Kervin Tung, P.C., Flushing, N.Y. (Ge Li of counsel), for appellants.

Rich, Intelisano & Katz, LLP, New York, N.Y. (Daniel E. Katz, John M. Giordano, and Trista W. McConnell of counsel), for respondents.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

181 A.D.3d 662

In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from an order of the Supreme Court, Queens County (Pam B. Jackman–Brown, J.), entered November 19, 2018. The order granted the defendants' motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

In 2007, the plaintiff Leavitt Enterprise, Inc. (hereinafter Leavitt), purchased certain property located in Queens (hereinafter the Leavitt property). In 2013, Leavitt began construction of a hotel on the Leavitt property. The defendant Two Fulton Square, LLC (hereinafter Two Fulton), is the owner of certain property adjacent to the Leavitt property (hereinafter the Two Fulton property).

On March 25, 2014, Leavitt and Two Fulton executed a written cooperation agreement. Therein, they agreed to cooperate with each other to provide "reasonable access" to each other's property for the purposes of providing underpinning, rooftop protection, support of excavation,

120 N.Y.S.3d 365

sidewalk/shed protection, construction monitoring, and any other necessities of construction. The cooperation agreement further provided that the agreement set forth the "entire" understanding of the parties. Following the execution of the cooperation agreement, Leavitt erected scaffolding in the front yard of a warehouse on Two Fulton's property. In 2015, construction of a four-building development began on Two Fulton's property. The defendant Top 8 Construction Corp. (hereinafter Top 8) was the general contractor of the construction project on Two Fulton's property.

In August 2017, construction was completed on the Leavitt property, where the plaintiff John Hotel, Inc. (hereinafter John Hotel), manages a hotel. In November 2017, Top 8 tendered a $5,000 check to John Hotel and erected scaffolding and sidewalk sheds on the Leavitt property.

In February 2018, Leavitt and John Hotel (hereinafter together the plaintiffs) commenced this action against Two Fulton and Top 8 (hereinafter together the defendants) to recover damages for breach of contract and trespass, and pursuant to RPAPL 871 to compel the defendants to remove the structures encroaching on the Leavitt property. The...

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1 practice notes
  • Am. Infertility of N.Y., P.C. v. Verizon N.Y. Inc., 159892/2015
    • United States
    • United States State Supreme Court (New York)
    • 10 December 2020
    ...from maintaining a claim for trespass due to acts for which plaintiffs granted a license. Leavitt Enter., Inc. v. Two Fulton Sq., LLC , 181 A.D.3d 662, 663-64, 120 N.Y.S.3d 363 (2d Dep't 2020). Defendant may establish licensee status with evidence that plaintiff owner or its agent orally gr......
1 cases
  • Am. Infertility of N.Y., P.C. v. Verizon N.Y. Inc., 159892/2015
    • United States
    • United States State Supreme Court (New York)
    • 10 December 2020
    ...from maintaining a claim for trespass due to acts for which plaintiffs granted a license. Leavitt Enter., Inc. v. Two Fulton Sq., LLC , 181 A.D.3d 662, 663-64, 120 N.Y.S.3d 363 (2d Dep't 2020). Defendant may establish licensee status with evidence that plaintiff owner or its agent orally gr......

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