Malerba v. Warren
| Decision Date | 11 July 1983 |
| Docket Number | No. 2,No. 1,No. 3,1,2,3 |
| Citation | 464 N.Y.S.2d 835,96 A.D.2d 529 |
| Parties | Robert F. MALERBA, et al., Respondents, v. Harry Lee WARREN, et al., Appellants (Action), TOWN OF EAST HAMPTON, Respondent, v. Harry Lee WARREN, et al., appellants (Action), Robert F. MALERBA, et al., Respondents, v. Julie Claire WARREN, et al., Appellants, et al., Defendant (Action). |
| Court | New York Supreme Court — Appellate Division |
Suozzi, English & Cianciulli, P.C., Mineola (Joseph P. Hoey and Ronald E. Sommer, Mineola, of counsel), for appellants.
Smith, Finkelstein, Lundberg, Crimmins & Yakaboski, Riverhead (Howard M. Finkelstein and Frank A. Isler, Riverhead, of counsel), for respondent Town of East Hampton.
McSherry & Flynn, Huntington (Bernard P. McSherry, Huntington, of counsel), for respondents Robert F. Malerba and Mary Sheila Malerba.
Before BROWN, J.P., and NIEHOFF, RUBIN and BOYERS, JJ.
MEMORANDUM BY THE COURT.
In three consolidated actions to recover damages and for injunctive relief, for, inter alia, trespass to land, violation of the Code of the Town of East Hampton and threatened violation of an implied easement, the appeal is from a judgment of the Supreme Court, Suffolk County, dated May 29, 1981, which, after a joint nonjury trial of the actions, held in favor of the plaintiffs against the appellants.
Judgment modified, on the law and the facts, by deleting the fourth decretal paragraph thereof which granted plaintiffs Robert F. Malerba and Mary Sheila Malerba the principal sum of $38,000 for lost rental income. As so modified, judgment affirmed, 108 Misc.2d 785, 438 N.Y.S.2d 936, without costs or disbursements.
The trial evidence amply supports the determination of the trial court that appellants' placement of a cottage on property referred to as "lot 3" near the boundary line of property owned by plaintiffs Robert F. Malerba and Mary Sheila Malerba and referred to as "lot 2", constituted, inter alia, a trespass to the Malerbas' land, and a violation of the Code of the Town of East Hampton. Compensatory and punitive damages were properly awarded to the Malerbas for the cost of rehabilitating their property, owing to defendants' reckless disregard of the Malerbas' rights (see MacKennan v. Bern Realty Co., 30 A.D.2d 679, 291 N.Y.S.2d 953).
However, the award of $38,000 for lost rental income was not supported by the evidence. This sum represented the total alleged rental value of lot 2 for the summers of 1979 and 1980. The Malerbas' witness, real estate broker Roger Atwood, testified that he rented that property to a renowned actor for the summers of 1976 and 1978, but was unable to rent the property for the summers of 1979 and 1980. He testified that he showed the property to several potential tenants, but to no avail. In his opinion, he was unable to find a tenant for the property because the erection of the cottage in close proximity thereto destroyed the "getting-away-from-it-all" atmosphere. The potential tenants were not identified, however, nor did Mr. Atwood testify that the potential tenants...
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