Town of Fishkill v. Turner

• Decision Date: 24 March 2009
• Docket Number: 2007-10802.
• Citation: 2009 NY Slip Op 02351,60 A.D.3d 932,876 N.Y.S.2d 92
• Parties: TOWN OF FISHKILL, Appellant, v. TIMOTHY J. TURNER et al., Respondents.
• Court: New York Supreme Court — Appellate Division

60 A.D.3d 932

876 N.Y.S.2d 92

2009 NY Slip Op 02351

TOWN OF FISHKILL, Appellant, v. TIMOTHY J. TURNER et al., Respondents.

2007-10802.

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

Decided March 24, 2009.

In an action, inter alia, pursuant to RPAPL 871 for an injunction compelling the defendants to remove a fence allegedly encroaching on the plaintiff's real property, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Sproat, J.), dated November 5, 2007, which denied that branch of its motion which was for summary judgment on the complaint and, in effect, denied, as academic, that branch of its motion which was for summary judgment dismissing the counterclaim.

Ordered that the order is modified, on the law, by deleting the provision thereof which, in effect, denied, as academic, that branch of the plaintiff's motion which was for summary judgment dismissing the counterclaim; as so modified, the order is affirmed, with costs to the defendants, and the matter is remitted to the Supreme Court, Dutchess County, to determine that branch of the motion on the merits.

This is an action, inter alia, by the Town of Fishkill pursuant to RPAPL 871, for an injunction compelling the defendants to remove a fence allegedly encroaching on the right of way of a Town highway. In support of that branch of its motion which was for summary judgment on the complaint, the Town demonstrated that the defendants' fence encroached between 8.3 feet and 9.35 feet onto its land, along a line situated between the edge of the roadway pavement and the defendants' property line, a fact which the defendants acknowledged. Contrary to the Supreme Court's finding, this encroachment was, as a matter of law, not de minimis (cf. Hoffmann Invs. Corp. v Yuval, 33 AD3d 511, 512 [2006]; Wing Ming Props. [U.S.A.] v Mott Operating Corp., 172 AD2d 301, 301-302 [1991]; Generalow v Steinberger, 131 AD2d 634, 635 [1987]). In order to obtain the injunctive relief it seeks, however, the Town was 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 (see RPAPL 871; Medvin v Grauer, 46 AD2d 912 [1974]; Lawrence v Mullen, 40 AD2d 871 [1972]). The only evidence submitted by the Town to establish that the balance of equities weighs in its favor was a copy of a letter from the Town's Building Inspector to the defendants, stating that the Town's Highway Superintendent had determined that the encroachment impeded snow plow operations on the road. Such hearsay was insufficient to establish...