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

• Citation: 2012 N.Y. Slip Op. 08511,101 A.D.3d 853,956 N.Y.S.2d 102
• Court: New York Supreme Court Appellate Division
• Decision Date: 12 December 2012
• Parties: VOLUNTEER FIRE ASSOCIATION OF TAPPAN, INC., respondent-appellant, v. COUNTY OF ROCKLAND, et al., appellants-respondents.

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.

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.

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 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, 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 post an undertaking, the area along Washington Street in front of the plaintiff's property remained a construction site. Thereafter, on August 7, 2009, the parties entered into a stipulation of partial settlement, which allowed constructionto proceed along the plaintiff's property pursuant to earlier plans dated January 8, 2006. On October 21, 2009, the plaintiff's property was restored to the condition it had been in prior to construction.

The action proceeded to trial before a jury. At the close of the plaintiff's case, the trial court, upon the defendants' motion pursuant to CPLR 4401, inter alia, directed the dismissal of the causes of action alleging unlawful taking by eminent domain and pursuant to 42 USC § 1983, and denied those branches of the motion which were for judgment as a matter of law dismissing the causes of action alleging trespass and private nuisance.

The jury found that the defendants trespassed onto the plaintiff's property, resulting in physical damage to the plaintiff's parking lot in the sum of $10,000 for the period from November 8, 2007, until December 3, 2007, and damages in the sum of $30,000 for loss of use of the parking lot for the period from November 8, 2007, until October 21, 2009. The jury further found that the defendants created a private nuisance, resulting in physical damage to the plaintiff's parking lot in the sum of $20,000 for the period from November 8, 2007, until December 3, 2007, and damages in the sum of $130,000 for loss of use of the parking lot for the period from November 8, 2007, until October 21, 2009. The total amount of damages awarded was $190,000.

Contrary to the defendants' contention, a municipality may be found liable for trespass and a private nuisance ( see Siefert v. City of Brooklyn, 101 N.Y. 136, 142, 4 N.E. 321;M.C.D. Carbone, Inc. v. Town of Bedford, 98 A.D.2d 714, 469 N.Y.S.2d 117;Ebbets v. City of New York, 111 App.Div. 364, 366, 97 N.Y.S. 833). The elements of a cause of action sounding in trespass are an intentional entry onto the land of another without justification or permission ( see Carlson v. Zimmerman, 63 A.D.3d 772, 773, 882 N.Y.S.2d 139;Woodhull v. Town of Riverhead, 46 A.D.3d 802, 804, 849 N.Y.S.2d 79), or a refusal to leave after permission has been granted but thereafter withdrawn ( see Rager v. McCloskey, 305 N.Y. 75, 79, 111 N.E.2d 214;Navarro v. Federal Paper Bd. Co., 185 A.D.2d 590, 592, 586 N.Y.S.2d 381). Intent is defined as intending the act which produces the unlawful intrusion, where the intrusion is an immediate or inevitable consequence of that act ( see Phillips v. Sun Oil Co., 307 N.Y. 328, 331, 121 N.E.2d 249). “Liability may attach regardless of defendant's mistaken belief that he or she had a right to enter” ( State of New York v. Johnson, 45 A.D.3d 1016, 1019, 846 N.Y.S.2d 671;see Curwin v. Verizon Communications [ LEC ], 35 A.D.3d 645, 827 N.Y.S.2d 256). A cause of action alleging trespass is distinguishable from a cause of action alleging a de facto taking, since a trespass may be...