Petry v. Gillon

Citation199 A.D.3d 1277,159 N.Y.S.3d 165
Decision Date24 November 2021
Docket Number532567
Parties John PETRY et al., Respondents, v. Isabella GILLON, Individually and as Trustee for the Adam Gillon 1997 Trust and the Isabella Gillon 1997 Trust, et al., Appellants.
CourtNew York Supreme Court — Appellate Division

199 A.D.3d 1277
159 N.Y.S.3d 165

John PETRY et al., Respondents,
v.
Isabella GILLON, Individually and as Trustee for the Adam Gillon 1997 Trust and the Isabella Gillon 1997 Trust, et al., Appellants.

532567

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

Calendar Date: October 12, 2021
Decided and Entered: November 24, 2021


159 N.Y.S.3d 167

Isabella Gillon, Palm Beach, Florida, appellant pro se, and Iris Gillon, Teaneck, New Jersey, appellant pro se.

Rupp Baase Pfalzgraf Cunningham LLC, Saratoga Springs (Phillip A. Oswald of counsel), for respondents.

Before: Garry, P.J., Lynch, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

Appeal from that part of an order of the Supreme Court (Cahill, J.), entered May 21, 2020 in Ulster County, which (1) granted plaintiffs’ motion to dismiss defendants’ seventh counterclaim and claims for counsel fees, (2) denied defendants’ cross motion for leave to serve a second amended answer, and (3) granted plaintiffs’ motion for a preliminary injunction.

Defendant Isabella Gillon and her husband were the original owners of a tract of land in the Town of Gardiner, Ulster County. At some point, the property was transferred to their respective trusts, of which Isabella Gillon and defendant Iris Gillon are trustees. In 1987, the property was subdivided into two lots. A map was filed showing the metes and bounds of those lots and depicting a driveway located wholly on Lot 2. In 2005, defendants transferred Lot 2 to plaintiffs’ predecessors in interest, who transferred the property to plaintiffs in 2008. In 2017, plaintiffs obtained a survey of their property, which showed that the driveway was located along the property line between plaintiffs’ and defendants’ lots and partially extended into Lot 1.

159 N.Y.S.3d 168

Plaintiffs commenced this action in 2018 alleging, among other things, that they had acquired the disputed property (the entire driveway and a buffer of 55 feet) by adverse possession or practical location. Defendants answered and then amended their answer as of right to include, among other things, a counterclaim for intentional infliction of emotional distress. In April 2018, plaintiffs moved to dismiss this counterclaim, as well as defendants’ claims for counsel fees. Defendants opposed and cross-moved for leave to serve a second amended answer adding certain additional counterclaims. Over a year later, defendants, now pro se, served an amended cross motion with a different proposed second amended answer that contained, among other things, a counterclaim for defamation and new allegations supporting their intentional infliction of emotional distress counterclaim. Plaintiffs moved for a preliminary injunction enjoining defendants from entering or using plaintiffs’ property, as identified in the relevant tax map.

Supreme Court ultimately granted plaintiffs’ motion to dismiss defendants’ emotional distress counterclaim and claims for counsel fees. The court also denied defendants’ cross motion to serve either version of their second amended answer. Finally, as relevant here, the court granted plaintiffs’ motion for a preliminary injunction. Defendants appeal from that part of the court's order that granted plaintiffs’ motion to dismiss defendants’ emotional distress counterclaim and claims for counsel fees, denied defendants’ motion for leave to serve a second amended answer, and granted plaintiffs’ motion for a preliminary injunction.

Plaintiffs’ motion to dismiss defendants’ requests for counsel fees targeted certain paragraphs of their amended answer that address counterclaims alleging trespass and a violation of RPAPL 861.1 Under the general rule, counsel fees are considered incidents of litigation and "cannot be awarded unless authorized by statute, court rule, or agreement between the parties" ( Xiaokang Xu v. Xiaoling Shirley He, 147 A.D.3d 1223, 1226, 48 N.Y.S.3d 530 [2017] [internal quotation marks and citation omitted]; see Hooper Assoc. v. AGS Computers, Inc., 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989] ). That general rule ordinarily precludes counsel fees in litigation concerning the tort of trespass. Defendants point to no provision in the CPLR or any other statute authorizing an exception to the American Rule that parties are responsible for their own costs of litigation, including counsel fees (see Congel v. Malfitano, 31 N.Y.3d 272, 291, 76 N.Y.S.3d 873, 101 N.E.3d 341 [2018] ). Additionally, " RPAPL 861 does not permit an award of counsel fees to a prevailing party" ( Halstead v. Fournia, 134 A.D.3d 1269, 1272, 22 N.Y.S.3d 606 [2015] ). Hence, Supreme Court properly granted the portion of plaintiffs’ motion seeking to dismiss defendants’ claims for counsel fees.

As to plaintiffs’ motion for a preliminary injunction, a "party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor" ( Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840, 800 N.Y.S.2d 48, 833 N.E.2d 191 [2005] ; accord

159 N.Y.S.3d 169

Green Harbour Homeowners’ Assn., Inc. v....

To continue reading

Request your trial
13 cases
  • White Oak Commercial Fin. v. Eia Inc.
    • United States
    • New York Supreme Court
    • June 12, 2023
    ... ... not, reach the Orents' arguments as to the sufficiency of ... White Oak's other causes of action against them (see ... e.g. Petry v Gillon, 199 A.D.3d 1277, 1279 [3d Dept ... 2021] ["to obtain a preliminary injunction, plaintiffs ... needed to demonstrate a likelihood of ... ...
  • White Oak Commercial Fin. v. Eia Inc.
    • United States
    • New York Supreme Court
    • June 23, 2023
    ... ... not, reach the Orents' arguments as to the sufficiency of ... White Oak's other causes of action against them (see ... e.g. Petry v Gillon, 199 A.D.3d 1277, 1279 [3d Dept ... 2021] ["to obtain a preliminary injunction, plaintiffs ... needed to demonstrate a likelihood of ... ...
  • Lake George Ass'n v. N.Y.S. Adirondack Park Agency
    • United States
    • New York Supreme Court
    • June 13, 2022
    ...CPLR 6301 ; Nobu Next Door, LLC v. Fine Arts Hous., Inc. , 4 N.Y.3d 839, 840, 800 N.Y.S.2d 48, 833 N.E.2d 191 [2005] ; Petry v. Gillon , 199 A.D.3d 1277, 1278, 159 N.Y.S.3d 165 [2021] ; Emerald Green Prop. Owners Assn., Inc. v. Jada Developers, LLC , 63 A.D.3d 1396, 1397, 882 N.Y.S.2d 328 [......
  • The Lake George Ass'n v. The NYS Adirondack Park Agency
    • United States
    • New York Supreme Court
    • June 13, 2022
    ...Inc., 63 A.D.3d 1429, 1430 [2009]; see CPLR 6301; Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 N.Y.3d 839, 840 [2005]; Petry v Gillon, 199 A.D.3d 1277, 1278 [2021]; Emerald Green Prop. Owners Assn., Inc. v Jada Developers, LLC, 63 A.D.3d 1396, 1397 [2009]). Beginning with the likelihood o......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT