Volunteer Fire Ass'n of Tappan, Inc. v. Cnty. of Rockland

CourtNew York Supreme Court Appellate Division
Writing for the CourtWILLIAM F. MASTRO
Citation2012 N.Y. Slip Op. 08511,101 A.D.3d 853,956 N.Y.S.2d 102
PartiesVOLUNTEER FIRE ASSOCIATION OF TAPPAN, INC., respondent-appellant, v. COUNTY OF ROCKLAND, et al., appellants-respondents.
Decision Date12 December 2012

101 A.D.3d 853
956 N.Y.S.2d 102
2012 N.Y. Slip Op. 08511

VOLUNTEER FIRE ASSOCIATION OF TAPPAN, INC., respondent-appellant,
v.
COUNTY OF ROCKLAND, et al., appellants-respondents.

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

Dec. 12, 2012.


[956 N.Y.S.2d 103]


Harris Beach PLLC, White Plains, N.Y. (Darius P. Chafizadeh and Robert A. Schaefer, Jr., of counsel), for appellants-respondents County of Rockland, County of Rockland Highway Department, and Andrew M. Connors.

Andrew Greene & Associates, P.C., White Plains, N.Y. (Paul T. Vink of counsel), for appellant-respondent Morano Brothers Corp.


Dwight D. Joyce, Stony Point, N.Y., for respondent-appellant.

WILLIAM F. MASTRO, J.P., PETER B. SKELOS, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.

[101 A.D.3d 853]In an action, inter alia, for injunctive relief and to recover damages for trespass and private nuisance, the defendants County of Rockland, County of Rockland

[956 N.Y.S.2d 104]

Highway Department, and Andrew M. Connors appeal, and the defendant Morano Brothers Corp., separately appeals, as limited by their respective briefs, from so much of a judgment of the Supreme Court, Rockland County (Walsh II, J.), entered November 17, 2010, as, upon the denial of that branch of their motion pursuant to CPLR 4401 which was for judgment as a matter of law dismissing the causes of action to recover damages for trespass and private nuisance, made at the close of the plaintiff's case, and upon a jury verdict finding that the plaintiff sustained damages in the principal sums of $10,000 for physical damage resulting from trespass, $20,000 for physical damage resulting from private nuisance, $30,000 for loss of use resulting from trespass, [101 A.D.3d 854]and $130,000 for loss of use resulting from private nuisance, is in favor of the plaintiff and against them in the principal sum of $190,000, and the plaintiff cross-appeals, as limited by its notice of appeal and brief, from so much of the judgment as, upon the granting of that branch of the defendants' motion pursuant to CPLR 4401 which was for judgment as a matter of law dismissing the cause of action to recover damages pursuant to 42 USC § 1983, made at the close of the plaintiff's case, in effect, dismissed that cause of action, and failed to award it punitive damages.

ORDERED that the judgment is modified, on the facts, by deleting the provisions thereof awarding damages in the principal sums of $30,000 for loss of use resulting from trespass and $130,000 for loss of use resulting from private nuisance, and substituting therefor a provision severing so much of the causes of action alleging trespass and private nuisance as were to recover damages for loss of use; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Rockland County, for a new trial on the issue of damages for loss of use resulting from trespass and loss of use resulting from private nuisance, and thereafter for the entry of an appropriate amended judgment.

In or about May 2000, the defendant County of Rockland undertook a project to rebuild county roads by reconstructing certain pavement, curbs, and sidewalks. The work was performed by the defendant Morano Brothers Corp. In November 2007, after the project had commenced, Andrew M. Connors, the Deputy Superintendent of the County of Rockland Highway Department, decided to construct a raised curb on approximately 57 feet of roadway in front of the plaintiff's firehouse on Washington Street in the Town of Orangetown, and implemented a field change to the project accordingly. In response, the plaintiff commenced the instant action, inter alia, to recover damages for trespass, private nuisance, unlawful taking by eminent domain, and pursuant to 42 USC § 1983, contending, among other things, that the raised curb constituted a trespass upon its property and materially impeded access to and from its firehouse. Further construction work was halted on December 3, 2007, pursuant to a temporary restraining order.

By decision and order dated March 3, 2009, this Court awarded the plaintiff preliminary injunctive relief, and directed the defendants to remove the raised curb already installed, on the condition that the plaintiff post an undertaking pursuant to CPLR 6312(b) ( see Volunteer Fire Assn. of Tappan, Inc. v. County of Rockland, 60 A.D.3d 666, 883 N.Y.S.2d 706). Since the plaintiff failed to [101 A.D.3d 855]post an undertaking, the area along Washington Street in front of the plaintiff's property remained a construction site. Thereafter, on...

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45 practice notes
  • Frederique v. Cnty. of Nassau, 11-CV-1746 (SIL)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 11 Marzo 2016
    ...to leave after permission has been granted but thereafter withdrawn.” Volunteer Fire Ass'n of Tappan, Inc. v. County of Rockland , 101 A.D.3d 853, 855, 956 N.Y.S.2d 102 (2d Dep't 2012). However, “law-enforcement officials have a privilege to enter private property to perform their legal dut......
  • Am. Infertility of N.Y., P.C. v. Verizon N.Y. Inc., 159892/2015
    • United States
    • United States State Supreme Court (New York)
    • 10 Diciembre 2020
    ...Owners Corp. , 132 A.D.3d 541, 542, 20 N.Y.S.3d 341 (1st Dep't 2015) ; Volunteer Fire Assn. of Tappan, Inc. v. County of Rockland , 101 A.D.3d 853, 855, 956 N.Y.S.2d 102 (2d Dep't 2012), or "a refusal to leave after permission has been granted but thereafter withdrawn." Volunteer Fire Assn.......
  • Cangemi v. United States, No. 12–CV–3989(JS)(WDW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 29 Marzo 2013
    ...where the intrusion is an immediate or inevitable consequence of that act.” Volunteer Fire Ass'n of Tappan, Inc. v. Cnty. of Rockland, 101 A.D.3d 853, 855, 956 N.Y.S.2d 102 (2d Dep't 2012). Plaintiffs' allegations, which the Court assumes are true on a motion to dismiss, state that the Town......
  • Cangemi v. United States, 19-1076
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 7 Septiembre 2021
    ..."where the intrusion is an immediate or inevitable consequence of the act." Volunteer Fire Ass'n of Tappan, Inc. v. County of Rockland , 101 A.D.3d 853, 956 N.Y.S.2d 102, 105 (2d Dep't 2012). Here, as the district court recognized, "the only action the Town has taken" with respect to the Je......
  • Request a trial to view additional results
45 cases
  • Frederique v. Cnty. of Nassau, 11-CV-1746 (SIL)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 11 Marzo 2016
    ...to leave after permission has been granted but thereafter withdrawn.” Volunteer Fire Ass'n of Tappan, Inc. v. County of Rockland , 101 A.D.3d 853, 855, 956 N.Y.S.2d 102 (2d Dep't 2012). However, “law-enforcement officials have a privilege to enter private property to perform their legal dut......
  • Am. Infertility of N.Y., P.C. v. Verizon N.Y. Inc., 159892/2015
    • United States
    • United States State Supreme Court (New York)
    • 10 Diciembre 2020
    ...Owners Corp. , 132 A.D.3d 541, 542, 20 N.Y.S.3d 341 (1st Dep't 2015) ; Volunteer Fire Assn. of Tappan, Inc. v. County of Rockland , 101 A.D.3d 853, 855, 956 N.Y.S.2d 102 (2d Dep't 2012), or "a refusal to leave after permission has been granted but thereafter withdrawn." Volunteer Fire Assn.......
  • Cangemi v. United States, No. 12–CV–3989(JS)(WDW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 29 Marzo 2013
    ...where the intrusion is an immediate or inevitable consequence of that act.” Volunteer Fire Ass'n of Tappan, Inc. v. Cnty. of Rockland, 101 A.D.3d 853, 855, 956 N.Y.S.2d 102 (2d Dep't 2012). Plaintiffs' allegations, which the Court assumes are true on a motion to dismiss, state that the Town......
  • Cangemi v. United States, 19-1076
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 7 Septiembre 2021
    ..."where the intrusion is an immediate or inevitable consequence of the act." Volunteer Fire Ass'n of Tappan, Inc. v. County of Rockland , 101 A.D.3d 853, 956 N.Y.S.2d 102, 105 (2d Dep't 2012). Here, as the district court recognized, "the only action the Town has taken" with respect to the Je......
  • Request a trial to view additional results

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