Roman Catholic Church of Our Lady of Sorrows v. Prince Realty Management, LLC, 2007-00266.

• Decision Date: 29 January 2008
• Docket Number: 2007-00266.
• Citation: 47 A.D.3d 909,850 N.Y.S.2d 569,2008 NY Slip Op 00674
• Parties: ROMAN CATHOLIC CHURCH OF OUR LADY OF SORROWS, Respondent, v. PRINCE REALTY MANAGEMENT, LLC, Appellant.
• Court: New York Supreme Court — Appellate Division

47 A.D.3d 909

850 N.Y.S.2d 569

2008 NY Slip Op 00674

ROMAN CATHOLIC CHURCH OF OUR LADY OF SORROWS, Respondent, v. PRINCE REALTY MANAGEMENT, LLC, Appellant.

2007-00266.

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

Decided January 29, 2008.

In an action, inter alia, to recover damages for breach of a license and for trespass, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Price, J.), entered December 21, 2006, as granted the plaintiff's cross motion for summary judgment on the issue of liability on its first and second causes of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff church and the defendant are adjoining property owners. On August 19, 2005 the parties entered into an agreement by which the plaintiff granted the defendant a three-month license to use a three-foot strip of its property immediately adjacent to the defendant's property (hereinafter the licensed strip). The license specifically authorized the defendant to remove an existing chain link fence on the licensed strip and to "put up plywood panels surrounding the construction site, including the [licensed strip]." The license also required that the defendant, inter alia, restore the boundary line between the properties with a new brick fence. The plaintiff averred that the purpose of the license was to allow the defendant to erect a temporary plywood fence in order to protect the defendant's property during the construction of a new building. However, during the term of the license, the plaintiff's pastor observed the defendant install structures consisting of steel piles and beams on the licensed property. The plaintiff objected to the installation of these structures, and repeatedly demanded that they be removed. Although the defendant agreed to remove these structures, the plaintiff claims that it failed to do so.

The plaintiff subsequently commenced this action, inter alia, to recover damages for breach of the license and for trespass. The plaintiff thereafter cross-moved for summary judgment on the issue of liability on its first and second causes of action alleging breach of the license and trespass, respectively. In support of its cross motion, the plaintiff submitted an affidavit of its pastor, who averred that the defendant had breached the license by erecting permanent structures on the licensed property consisting of steel piles and beams. The plaintiff also relied upon documentary evidence which included correspondence between the parties relating to the formation of the license and the defendant's alleged breach thereof. In opposition to the cross motion, the defendant submitted evidence indicating that it removed the subject structures from the licensed property on or about November 17, 2005. The Supreme Court granted the cross motion, concluding that the plaintiff had made a prima facie showing that structures were placed upon its property by the defendant in violation of the license, and that the defendant had failed to dispute the plaintiff's claim that it violated the agreement.

The Supreme Court properly granted the plaintiff summary judgment on its causes of action alleging breach of the license and trespass. "A license, within the context of real property law, grants the licensee a...