Mangusi v. Town of Mount Pleasant

• Decision Date: 27 June 2005
• Docket Number: 2004-01263.
• Citation: 799 N.Y.S.2d 67,2005 NY Slip Op 05565,19 A.D.3d 656
• Parties: JOHN MANGUSI et al., Respondents, v. TOWN OF MOUNT PLEASANT, Appellant.
• Court: New York Supreme Court — Appellate Division

19 A.D.3d 656

799 N.Y.S.2d 67

2005 NY Slip Op 05565

JOHN MANGUSI et al., Respondents, v. TOWN OF MOUNT PLEASANT, Appellant.

2004-01263.

Appellate Division of the Supreme Court of the State of New York, Second Department.

June 27, 2005.

In an action, inter alia, to recover damages and obtain injunctive relief for negligence, trespass, and private nuisance, the defendant appeals from an order of the Supreme Court, Westchester County (Barone, J.), entered January 21, 2004, which granted the plaintiffs' motion for partial summary judgment declaring that the defendant owns and has a duty to repair an easement, and denied the defendant's cross motion for summary judgment dismissing the complaint.

Ordered that the order is modified, on the law, by (1) deleting the provision thereof granting that branch of the motion which was for partial summary judgment determining that the defendant has a duty to repair the easement and substituting therefor a provision denying that branch of the motion, and (2) deleting the provision thereof denying the cross motion for summary judgment dismissing the complaint and substituting therefor a provision granting the cross motion; as so modified, the order is affirmed, with costs, and the complaint is dismissed.

The defendant established, prima facie, that it was entitled to summary judgment dismissing the plaintiffs' cause of action alleging trespass. An action for trespass may not be maintained where the alleged trespasser has an easement over the land in question (see Kaplan v Incorporated Vil. of Lynbrook, 12 AD3d 410 [2004]; Krosky v Hatgipetros, 150 AD2d 344, 345 [1989]). In the instant case, the defendant demonstrated that it possessed a 15-foot wide drainage easement over the plaintiffs' property, and that the defendant did not exceed the scope of that easement. The plaintiffs failed to raise a triable issue of fact in opposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

The defendant further established, prima facie, that it was entitled to summary judgment dismissing the plaintiffs' cause of action alleging private nuisance. "The elements of such a private nuisance are: (1) an interference substantial in nature; (2) intentional in origin; (3) unreasonable in character; (4) with a person's right to use and enjoy land; (5) caused by another's conduct" (Weinberg v Lombardi, 217 AD2d 579 [1995], citing Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570 [1977]). In the instant case, the defendant demonstrated that the brook in question did not exceed the boundary of the 15-foot drainage easement, and therefore the defendant did not...