Tedesco v. Elio

Decision Date28 December 2022
Docket Number2019–09908, 2020–00522,Index No. 500718/17
Citation211 A.D.3d 1072,181 N.Y.S.3d 598
Parties David TEDESCO, et al., respondents, v. Andrew ELIO, appellant.
CourtNew York Supreme Court — Appellate Division

211 A.D.3d 1072
181 N.Y.S.3d 598

David TEDESCO, et al., respondents,
v.
Andrew ELIO, appellant.

2019–09908, 2020–00522
Index No. 500718/17

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

Submitted—October 28, 2022
December 28, 2022


Jonathan Rosenberg, PLLC, Brooklyn, NY, for appellant.

Craig T. Bumgarner, P.C., Carmel, NY, for respondents.

BETSY BARROS, J.P., JOSEPH J. MALTESE, JOSEPH A. ZAYAS, LILLIAN WAN, JJ.

DECISION & ORDER

211 A.D.3d 1072

In an action to recover damages for trespass and for injunctive relief, the defendant appeals from (1) a judgment of the Supreme Court, Putnam County (Victor G. Grossman, J.), dated August 14, 2019, and (2) a order of the same court dated December 16, 2019. The judgment, insofar as appealed from, after a nonjury trial, directed the defendant to remove an L-shaped retaining wall from the plaintiffs’ property. The order, inter alia, directed the defendant to post an undertaking of

211 A.D.3d 1073

$50,000 to insure that the work was completed by July 31, 2020.

ORDERED that the judgment is affirmed insofar as appealed from; and it is further,

ORDERED that the appeal from the order is dismissed as abandoned; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The defendant, in renovating his property, encroached on the plaintiffs’ property. The plaintiffs commenced this action to recover damages for trespass and for injunctive

relief. The defendant stipulated to removing certain encroachments. However, with respect to an L-shaped retaining wall that encroached 28 inches onto the plaintiffs’ property, the defendant contended that he owned the 28–inch encroachment area by adverse possession.

After a nonjury trial, the Supreme Court determined that the defendant failed to prove adverse possession by clear and convincing evidence,...

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4 cases
  • Tedesco v. Elio
    • United States
    • New York Supreme Court Appellate Division
    • December 28, 2022
    ...defendant's claim of adverse possession, are set forth in this Court's decision and order on a companion appeal (see Tedesco v. Elio, 211 A.D.3d 1072, 181 N.Y.S.3d 598 [Appellate Division Docket No. 2019–09908 ; decided herewith]).By letter dated September 13, 2019, the defendant's attorney......
  • Sweeney v. Hoey
    • United States
    • New York Supreme Court Appellate Division
    • December 28, 2022
    ...26, 2020, the Supreme Court denied the motion, and the defendants appeal." ‘An owner or tenant in possession of [real property] owes a 211 A.D.3d 1072 duty to maintain the property in a reasonably safe condition’ " ( Muller v. City of New York, 185 A.D.3d 834, 835, 125 N.Y.S.3d 576, quoting......
  • Patterson v. H.E.H.
    • United States
    • New York Supreme Court Appellate Division
    • June 21, 2023
    ...not assume such a duty through a course of conduct, and that it did not violate any relevant statute or regulation (see Sweeney v Hoey, 211 A.D.3d at 1072; Achee v Merrick Vil., Inc., 208 A.D.3d at 544; Keum Ok Han v Kemp, Pin & Ski, LLC, 142 A.D.3d 688, 689). Contrary to the plaintiffs' co......
  • Voltaire v. City of New York
    • United States
    • New York Supreme Court Appellate Division
    • June 7, 2023
    ...by statute or assumed by contract or a course of conduct (see Henry v Hamilton Equities, Inc., 34 N.Y.3d at 142-146; Sweeney v Hoey, 211 A.D.3d at 1072; Muller v City of New York, 185 A.D.3d 834, 835). Here, where the complaint sounds in common-law negligence and the plaintiff does not alle......

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