Malerba v. Warren

• Decision Date: 28 April 1981
• Citation: 438 N.Y.S.2d 936,108 Misc.2d 785
• Parties: Robert F. MALERBA and Mary Sheila Malerba, Plaintiffs, v. Julie Claire WARREN, Nancy Lee Warren, Harry Lee Warren, Jean D. Warren, Mary Kim Warren, Steve Nanna, Inc., and the Long Island Lighting Company, Defendants. TOWN OF EAST HAMPTON, Plaintiff, v. Harry Lee WARREN, Jean D. Warren, Julie Claire Warren, Nancy Lee Warren and Mary Kim Warren, Defendants.
• Court: New York Supreme Court

Page 936

438 N.Y.S.2d 936

108 Misc.2d 785

Robert F. MALERBA and Mary Sheila Malerba, Plaintiffs, v. Julie Claire WARREN, Nancy Lee Warren, Harry Lee Warren, Jean D. Warren, Mary Kim Warren, Steve Nanna,

Inc., and the Long Island Lighting

Company, Defendants.

TOWN OF EAST HAMPTON, Plaintiff, v. Harry Lee WARREN, Jean D. Warren, Julie Claire Warren, Nancy

Lee Warren and Mary Kim Warren, Defendants.

Supreme Court, Special Term Suffolk County.

April 28, 1981.

Malerba, Abruzzo, Clancy, Hayes, Downes, Frankel, Benisatto & Ra, P. C., Huntington, for plaintiffs Malerba; Ludwig J. Abruzzo, Huntington, of counsel

Smith, Finkelstein, Lundberg, Crimmins & Yakaboski, Riverhead, for plaintiff Town of East Hampton; Howard M. Finkelstein, Riverhead, of counsel.

Donner, Fagelson, Hariton & Berka, P. C., Bay Shore, for defendants Warren and Nanna; Aaron B. Donner, Bay Shore, of counsel.

Edward M. Barrett, Mineola, for defendant LILCo; Roy E. Monaco, Mineola, of counsel.

MEMORANDUM

OSCAR MUROV, Judge.

MALERBA v. WARREN

Plaintiffs bring this action for trespass, fraud, breach of covenant, violation of zoning ordinances and injunction arising out of defendants' placing a cottage on their own property in such a manner as to encroach on plaintiffs' adjacent property, to obstruct their view of the ocean and in violation of town ordinances of the Town of East Hampton that, it is claimed, prohibits the presence of the structure in the area.

FACTS

Plaintiffs are the owners in fee of property (hereinafter referred to as Lot # 2) that fronts on the Atlantic Ocean in the Town of East Hampton, Long Island, New York. Plaintiffs acquired title by deed from defendants on or about March 28, 1978. Lot # 2 is one of four such lots originally owned as one parcel by Harry Lee Warren, his wife and certain of their children. The original building on the property prior to its subdivision in 1971 and its subsequent sale to plaintiffs stood high on a series of dunes with a panoramic view. A small cottage also stood on the north side below a steep grade of the dunes to the southwest, hidden from view.

In 1977 defendant, Warren, applied for a variance on the original parcel seeking to have the acreage divided into four one acre parcels numbering the four lots from west to east facing the ocean, one through four. The Town Board granted said application on condition that the applicant remove said cottage from the premises before accomplishing the intended subdivision. The cottage in dispute was then located on the boundary line between lots # 1 and # 2. Plaintiffs decided to purchase some of this land from defendants and entered into negotiations with them. During the course of the negotiations defendant, Harry Warren, represented that he was removing said cottage to other property that he owned at a later date. A short time later plaintiffs observed that the cottage had been removed from the boundary line and put up on wheels for removal and was then situated on Lot # 4. Subsequent to the closing of title, however, plaintiffs discovered that defendant had moved said cottage to Lot # 3 where defendant had an existing building and, also, that he had excavated and built a permanent foundation for the cottage which now stood in such a position as to block plaintiffs' view of the ocean. Furthermore, in building the foundation, defendants had dug out a portion of plaintiffs' shrubs and ground cover and had undermined the dunes that provided lateral support for plaintiffs' structure.

Plaintiffs claim that in addition to Warren's cottage being placed in such a manner as to be esthetically unpleasant, the location of said cottage was the preventing factor in the Malerbas' being unable to rent their premises for the 1979 and 1980 summer seasons. Thereafter, plaintiffs complained to the Town officials about the structure and threatened to commence an Article 78 Proceeding against the Town unless it took action to enforce the building and zoning codes. Shortly thereafter summons were issued to defendant, Harry Warren, for violation of the Town Code and a conviction resulted. Defendant Warren thereafter sought to designate the cottage as a "storage shed" and thereafter an "accessory building" on subsequent applications to maintain the structure in place. However, said applications were denied because the building was too substantial to support either designation. It should be noted that the structure contained a full bathroom and two bedrooms.

When it appeared that defendant, Harry Warren, was not about to remove the offending structure to satisfy either the Malerbas or the Town of East Hampton, plaintiffs commenced an action against the Warrens.

A trial was had in which extensive testimony was taken and numerous documents were admitted into evidence. Based on the record, the court decides as follows:

A. Plaintiffs Are Entitled to Money Damages From Defendants For Trespass.

At trial it was adduced that defendants entered 10 to 15 feet on to plaintiffs' property removing a large portion of their dune, removing foliage, beach grass and other shrubbery and through their excavations interfered with plaintiffs' lateral support. Trespass generally is interference with a person's right to possession either by unlawful act or by lawful act performed in an unlawful manner. (Annutto v. Town of Herkimer, 56 Misc.2d 186, 288 N.Y.S.2d 79 (Sup.Ct. Oneida Co. 1968); aff'd in part and rev'd in part, 31 App.Div.2d 733, 297 N.Y.S.2d 295 (4th Dept. 1968)). Any unauthorized entry upon the land of another constitutes a trespass (Rager v. McCloskey, 305 N.Y. 75, 111 N.E.2d 214 (1954); Restatement, Torts 2d § 163). An actionable trespass must necessarily involve a wrongful or unjustifiable entry upon the land of another or the performance of some improper, careless, wrongful or unnecessary act thereon (see 61 N.Y.Jur., Trespass, § 11). "Trespass is an intentional harm at least to this extent: while the trespasser, to be liable, need not intend or expect the damaging consequences of his intrusion, he must intend the act which amounts to or produces the unlawful invasion and the intrusion must at least be the immediate or inevitable consequence of what he willfully does or which he does so negligently as to amount to willfulness." (Phillips v. Sun Oil Co., 307 N.Y. 328, 331, 121 N.E.2d 249, 250 (1954)). Here, there was unlawful entry by defendant upon land owned by plaintiff and removal of ground cover, dunes, shrubbery, etc. Furthermore, the commission of said trespass was, in the eyes of the law, the act of all defendants and all are jointly liable. (Goswami v. H & D Construction Co., 78 Misc.2d 99, 355 N.Y.S.2d 922 (Sup.Ct. Steuben Co. 1974)).

The next question is the measure of damages. Compensatory damages for trespass are limited to consequences flowing from interference with possession and not for separate acts more properly allocated under other categories of liability. (Costlow v. Cusimano, 34 A.D.2d 196, 311 N.Y.S.2d 92 (4th Dept. 1970)). Such compensatory damages the court finds constitute the following: Three Thousand and 00/100 ($3,000.00) Dollars for costs of restoration of the shrubs and beach grass, and Two Thousand Nine Hundred and 00/100 ($2900.00) Dollars for the costs of bulkheading the dune and for the fill and topsoil. Since these are damages that are capable of repair the court will not award damages for diminution in value of the property. (Tompkins v. State, 33 Misc.2d 828, 227 N.Y.S.2d 475 (Ct.Cl.1962)). Plaintiffs also contend that the measure of damages in a trespass case is ordinarily the diminution in the rental or useful value of the premises caused by the trespass indicating the property "as is", and they cite Eisen v. County of Westchester, 69 App.Div.2d 895, 415 N.Y.S.2d 888 (2nd Dept. 1979) in support of their contention. In that case, however, there was an actual trespass on the plaintiffs' lands by virtue of defendant's channeling and diverting waters onto plaintiffs' lands which was the approximate cause of the damage. Here, however, the act which plaintiffs claim caused a diminution in rental value was the placing of an edifice on defendants' adjoining land.

This, the court holds, does not constitute an entry on to plaintiffs' lands giving rise to such a measure of damages. The court does, however, find that plaintiffs are entitled to punitive or exemplary damages in the amount of $10,000.00. In order to recover punitive damages for a trespass on real property, a plaintiff has the burden of proving (1) actual malice which involves an intentional wrongdoing, or (2) such conduct as may be deemed to be tantamount to a wanton and wilful or a reckless disregard of plaintiffs' rights. (MacKennan v. Jay Bern Realty Co., 30 A.D.2d 679, 291 N.Y.S.2d 953 (2nd Dept. 1968)). In the instant case, defendants refused to correct the complained of condition even despite a guilty plea regarding same in violation of Town of East Hampton Ordinances. Construction of the foundation for the cottage even continued despite town "stop work" orders. Clearly, this constitutes at the very least reckless disregard of plaintiffs' rights giving rise to punitive damages in the aforestated amount. Plaintiffs' request for treble damages for trespass based upon RPAPL § 861 is without merit if for no other reason than "that section relied upon is restricted to the removal of trees and timber". (Rakosi v. General Electric Credit Corp., 59 A.D.2d 553, 555, 397 N.Y.S.2d 416, 418 (2nd Dept. 1977)).

B. Defendants Are Guilty of Fraud.

As a general rule, all premises, warranties and representations made prior to the contract are deemed merged therein (Strauss v. Abraham Levitt and Sons, Inc., 244 A.D. 739, 278 N.Y.S. 953 (2nd Dept. 1935)). To maintain an action based on fraudulent representation whether it be for the rescission of the contract or, as here, in tort for damages, it is sufficient to show that defendant knowingly uttered a falsehood intending to deprive pla...