A property developer whose ownership rights over a vacant parcel of land are being infringed upon by encroachment from a neighboring property has had its victory in court affirmed on appeal. The developer asserted that the neighboring building’s upper stories are significantly leaning into the developer’s air space, preventing the developer from building to its lot line.  The developer filed an action asserting claims for trespass and nuisance, seeking damages and injunctive relief.

 

The developer moved for summary judgment, asserting that there was no genuine issue as to the material facts. The court agreed and granted partial summary judgment in the developer’s favor on the issue of liability, finding that an actionable trespass had occurred and was continuing. This finding was based upon survey evidence demonstrating the degree of the neighboring building’s tilt and encroachment over the property line.  The court directed that the case continue solely on the issue of the amount of the developer’s damages.  The neighboring owner filed a motion for renewal seeking to overturn this decision, which was denied.

 

The neighboring owner then appealed to the Appellate Division, First Department, relying on a surveyor’s affidavit first submitted with its motion to renew.  The First Department held that this affidavit did not reflect new facts previously unknown to the neighbor, and saw no reasonable justification for the neighbor’s failure to submit it in response to the original summary judgment motion. In any event, the court found, the affidavit would not have changed the original ruling in the developer’s favor. Lower East Side II Assocs., L.P. v. 349 E. 10th Street, LLC, 2014 N.Y. Slip Op. 4696 (1st Dep’t June 24, 2014). Ganfer & Shore, LLP represented the successful property owner in this case, both in the lower court and on appeal.