Marsh v. Hogan

• Decision Date: 24 February 2011
• Citation: 919 N.Y.S.2d 536,2011 N.Y. Slip Op. 01401,81 A.D.3d 1241
• Parties: James E. MARSH, Appellant,v.Patrick HOGAN et al., Respondents.
• Court: New York Supreme Court — Appellate Division

81 A.D.3d 1241

919 N.Y.S.2d 536

2011 N.Y. Slip Op. 01401

James E. MARSH, Appellant,

v.Patrick HOGAN et al., Respondents.

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

Feb. 24, 2011.

DLA Piper, L.L.P. (US), New York City (Andrew L. Deutsch of counsel), for appellant.Butler & Butler, P.C., Vestal (Matthew C. Butler of counsel), for respondents.Before: CARDONA, P.J., ROSE, KAVANAGH, McCARTHY and EGAN JR., JJ.EGAN JR., J.

Appeal from a judgment of the Supreme Court (Tait, J.), entered January 6, 2010 in Tioga County, upon a decision of the court in favor of defendants.

Plaintiff owns a landlocked parcel of property that abuts defendants' property. Plaintiff purchased his parcel in 1979 and, in 1983, commenced an action for an easement by necessity against defendants' predecessors in title. In 1985, plaintiff, defendants' predecessors in title and Charles Farrell—a real estate developer—entered into a settlement agreement, which created an easement in favor of plaintiff over the property now held by defendants. The 50–foot–wide easement runs from a cul-de-sac at the end of Farrell Drive in the Town of Owego, Tioga County over defendants' property to plaintiff's property line, and was described in metes and bounds on a survey prepared at the direction of Farrell in 1990, which outlined his subdivision development plan for the property. The subdivision plan was later abandoned and, in 2004, Farrell sold his remaining undeveloped land to defendants, who thereafter built a house, part of which encroached on plaintiff's easement by approximately 10 feet. On the other side of the easement, defendants built a barn.

Plaintiff commenced this action seeking, among other things, damages, a permanent injunction and an order requiring defendants to remove any encroachments or obstructions present in the easement. Plaintiff eventually moved for partial summary judgment seeking a declaration that his easement was valid. In affirming the order granting plaintiff's motion, this Court determined that, pursuant to the 1985 settlement agreement, plaintiff has an easement by express grant over defendants' property (56 A.D.3d 1090, 1092, 867 N.Y.S.2d 786 [2008] ). After a nonjury trial, Supreme Court determined that plaintiff was not entitled to an injunction. Plaintiff now appeals.

Pursuant to RPAPL 871, the owner of any legal estate in land may, as is the case here, commence an action for an injunction directing the removal of a structure encroaching on such land ( see Hullar v. Glider Oil Co., 219 A.D.2d 825, 825–826, 219 A.D.2d 825, 631 N.Y.S.2d 971 [1995] ). “In order to obtain the injunctive relief [he or she] seeks, however, the [plaintiff is] required to demonstrate not only the existence of the encroachment, but that the benefit to be gained by compelling its removal would outweigh the harm that would result to the defendants from granting such relief” ( Town of Fishkill v. Turner, 60 A.D.3d 932, 933, 876 N.Y.S.2d 92 [2009] [citations omitted]; see Matter of Angiolillo v. Town of Greenburgh, 21 A.D.3d 1101, 1104, 801 N.Y.S.2d 629 [2005] ). “Whether an injunction should issue depends on all the equities between the parties” ( Hullar v. Glider Oil Co., 219 A.D.2d at 826, 631 N.Y.S.2d 971 [citation omitted] ), with consideration given to factors such as the extent of impairment created by the encroachment, the defendant's hardship in removing the encroachment, whether any alternatives would afford more equitable relief, or whether money damages would have been a just and adequate remedy ( see Mylott v. Sisca, 168 A.D.2d 852, 854, 564 N.Y.S.2d 523 [1990] ). Furthermore, equitable relief may be denied based on the plaintiff's delay in vindicating his or her rights ( see 487 Elmwood v. Hassett, 83 A.D.2d 409, 414, 445 N.Y.S.2d 336 [1981], appeal dismissed 55 N.Y.2d 103, –––N.Y.S.2d ––––, ––– N.E.2d –––– [1982] ), and based on the defendants' lack of willfulness in creating the encroachment ( see Forstmann v. Joray Holding Co., 244 N.Y. 22, 32, 154 N.E. 652 [1926]; Lawrence v. Mullen, 40 A.D.2d 871, 871, 338 N.Y.S.2d 15 [1972] ).

Supreme Court properly determined, after weighing the equitable considerations, that there is no need for the extraordinary remedy of an injunction requiring defendants to move their residence. The house encroaches on the easement by approximately 10 feet, leaving a nearly 40–foot–wide strip of land for plaintiff to access his property. While plaintiff asserts...