Sultan v. King

• Citation: 73 Misc.3d 338,152 N.Y.S.3d 777
• Decision Date: 19 August 2021
• Docket Number: 615511/2018
• Parties: Melinda SULTAN and Sady Sultan, Plaintiffs, v. Loren E. KING, Jr. and Lynn D. King, Defendants.
• Court: New York County Court

73 Misc.3d 338
152 N.Y.S.3d 777

Melinda SULTAN and Sady Sultan, Plaintiffs,
v.
Loren E. KING, Jr. and Lynn D. King, Defendants.

615511/2018

County Court, New York, Suffolk County.

Decided on August 19, 2021

152 N.Y.S.3d 780

Attorneys for Plaintiffs, Law Offices of Paula A. Miller, P.C., 257 East Main Street, Ste. A, Smithtown, New York 11787

Attorney for Defendants, Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, 456 Griffing Avenue, Riverhead, New York 11901

James F. Matthews, J.

This matter came on for a non-jury trial before the undersigned on the dates noted above. Plaintiffs seek damages relating to the spread of bamboo from defendant's property to their property located on Shelter Island, New York. Specifically, plaintiffs seek to recover the cost to excavate and remove bamboo that has spread onto their property from defendant's property and for the installation of a barrier along the property line separating the two properties and along a portion of the rear property line to prevent the future spread of bamboo onto their property. Plaintiffs also seek damages for loss of use of their property. Plaintiffs’ claims are based on a private nuisance claim, negligence and trespass. Defendants deny any legal responsibility to defendants under either statutory or common law and, in any event, argue that all of the claims are untimely. Further, defendants argue that

152 N.Y.S.3d 781

plaintiffs failed to mitigate any damages that they might be entitled to either for remediation or for loss of use.

At the outset, the court notes the sad passing of defendant Loren E. King, Jr., subsequent to the conclusion of the trial while this matter was sub judice. Defense counsel has opined that CPLR 1015(b) permits the court to decide this case because the relief sought by plaintiff survives only as against Mrs. King, the surviving spouse and co-defendant, as represented by defense counsel. The court agrees. See Bon Temps Agency, Ltd. v. Hickey, 5 A.D.3d 157, 773 N.Y.S.2d 56 (1st Dep't 2004) ; Bova v. Vinciguerra, 139 A.D.2d 797, 526 N.Y.S.2d 671 (3rd Dep't 1988). Accordingly, the court will decide this matter on the merits.

The core facts are not in dispute. The Sultans and the Kings are adjacent residentially improved property owners on East Brander Parkway, Shelter Island, New York. Both parties utilize their respective properties as "vacation homes" and maintain their principal residence at another address. Sometime in the early 1990's, the Kings elected to plant a grove of running bamboo on their property to serve as privacy screening between their property and the Sultan property. At the time of the planting, it was lawful to plant running bamboo. In 2015, it became unlawful to plant running bamboo on any property in the State of New York. The maintenance and retention of existing bamboo groves, such as defendants, remained lawful and continues to be lawful in the Town of Shelter Island where the subject properties are located.

There is no dispute that running bamboo is an invasive species of plant that can be expected to spread in all directions. The invasive nature of running bamboo has spurred legislative action in many jurisdictions. As noted, in New York State it is unlawful to plant running bamboo due to its noxious nature. Many local jurisdictions on Long Island have adopted laws that either prohibit the maintenance of running bamboo or which impose regulations on properties where running bamboo is located so as to prevent the spread to neighboring properties. See, e.g., Town of Huntington Code Chapter 156A; Town of Babylon Code Chapter 145; Town of Smithtown Code § 221-4; Town of Oyster Bay Code Chapter 135, Article VIII; Town of North Hempstead Code Chapter 67; Town of Hempstead Code § 128-61.B(3). The regulations vary from outright prohibition of growing or maintaining running bamboo, requiring the removal of existing bamboo, to prohibiting the spread to neighboring properties or within a certain distance of property lines. Some also require remediation of encroachments of running bamboo onto neighboring properties. Notably, the Town of Shelter Island where the subject properties are located has no laws regarding bamboo.

The central question before the court, therefore, is whether in the absence of statutory or regulatory prohibitions or mandates, can the defendants’ be held liable to plaintiffs for the spread of their running bamboo on any theory of the common law and, if so, what is the appropriate remedy.

It is not in dispute that defendants’ bamboo has in fact spread to the property directly to the rear of both the Sultans’ and the Kings’ property as well as onto the Sultans’ property. On the King's own property, the bamboo grove has not spread more than ten feet or so, according to the estimates of the witnesses testifying. The Kings have continuously employed the same landscaper who mows and weeds the lawn area adjacent to their bamboo grove which defendants claim has been effective in limiting the above ground growth of

152 N.Y.S.3d 782

bamboo further into their property. Defendants were not sure if their landscaper used chemicals. There is no evidence as to the extent of bamboo growth below ground. It also is undisputed that defendants have done nothing to prevent the spread of the bamboo onto plaintiffs’ or any other adjoining properties, excepting only the removal by defendant's landscaper, Mr. Richards, of some of the bamboo that had spread to the rear of defendant's property. Nothing was ever done by Mr. Richards or defendants or anyone else acting on their behalf to prevent or stop the spread of bamboo onto the plaintiff's property or to eradicate the bamboo that had spread. Mrs. Sultan, one of the plaintiff's, testified that they have consistently employed a gardener who regularly mows the lawn and maintains the landscaping on their property. In addition, the gardener was paid extra to clean bamboo leaves and debris that had fallen onto their property from over-hanging bamboo towards the rear of their property, particularly in the pool area. Until 2017, plaintiffs both deny ever seeing bamboo growing in their yard.

All of the expert testimony received into evidence agreed that the running bamboo is an invasive species and that it tends to spread in all directions. Plaintiffs testified that they first became aware of the spread of the running bamboo onto their property in the spring of 2017. There are numerous photos in evidence showing the bamboo growth at various times from 2017 when it was first observed, according to plaintiffs, through 2020. Defendants claim one or both of the plaintiffs previously advised defendants that bamboo had spread onto their property from the King property and that they had expended sums to maintain their property. Plaintiffs dispute they had made any such communication. They claim that there only previous complaints related to bamboo leaves/debris from overhanging bamboo falling into their rear yard in the area of their pool.

Defendants argue that when the bamboo spread onto plaintiff's property and/or when plaintiffs were aware of the spread is relevant to their statute of limitations defense to all claims. The court, however, finds that it is immaterial when plaintiffs first learned about the spread of bamboo onto their property from defendants’ property. In the court's opinion, the statute of limitations defenses raised by defendants to the nuisance and trespass claims have no merit. Regarding the negligence claim, the court credits the testimony of plaintiffs and finds that this claim also is timely.

Plaintiffs’ claims based upon nuisance and trespass are not barred by the statute of limitations because of the continuing nature of the condition. The Court of Appeals ruling in Bloomingdales, Inc. v. New York City Transit Authority, 13 N.Y.3d 61, 886 N.Y.S.2d 663, 915 N.E.2d 608 (2009) is, in the court's opinion, squarely on point. The municipal defendant had severed plaintiff's drain pipe while installing a concrete conduit. This occurred in 1999. The severing of the drain pipe caused periodic flooding. The Court rejected the statute of limitations defense as to the nuisance and trespass claims finding under the facts that the defendant's interference with plaintiff's property rights was an unlawful encroachment giving rise to successive causes of action, under claims based upon both trespass and nuisance. "There was a continuous interference with Bloomingdales’ right to use and enjoy its property right". 13 N.Y.3d at 66, 886 N.Y.S.2d 663, 915 N.E.2d 608. See also Lucchesi v. Perfetto, 72 A.D.3d 909, 911-912, 899 N.Y.S.2d 341 (2nd Dep't 2010). The court in Yager v. Thompson, 1 Misc. 3d 902(A), 781 N.Y.S.2d 628 (1st Dist.Ct.Nassau Co. 2003), aff'd,

152 N.Y.S.3d 783

8 Misc. 3d 138(A), 2005 WL 1940164 (App. Term 2005) specifically ruled that running bamboo constituted a continuous trespass and therefore an action for costs to remediate was not subject to the statute of limitations defense, as alleged by defendants in the case at bar. The court ruled that plaintiff's nuisance claim based on the encroachment of the neighbors’ bamboo onto their property was not barred by the statute of limitations "in light of the continuing nature of the condition. See, Scheg v. Agway, [Inc.], ...