Opinion
No. 2023-50348 Index No. 151985/2022
04-18-2023
Elma Noel and Ranley Noel, Plaintiff, v. Frantz Lorrius and Jean Lorrius, Defendant.
Counsel for the Plaintiffs: Lee Mitchell Nigen, Esq. LAW OFFICES OF LEE M. NIGEN Counsel for the Defendants: Lynne Colette Clarke, Esq. Lynne Clarke Attorney at Law
Unpublished Opinion
Counsel for the Plaintiffs: Lee Mitchell Nigen, Esq. LAW OFFICES OF LEE M. NIGEN
Counsel for the Defendants: Lynne Colette Clarke, Esq. Lynne Clarke Attorney at Law
RONALD CASTORINA, JR. JUSTICE
The following e-filed documents listed on NYSCEF (Motion #003) numbered 36-42 and (Motion #004) numbered 48-54 were read on this motion. On March 20, 2023, Defendant waived reply on the record.
Upon the foregoing documents, and after oral argument conducted on March 20, 2022, on Motion Sequence #003 and Motion Sequence #004, Motion Sequence #003 and Motion Sequence #004 are resolved and therefore, it is hereby, ORDERED, the relief sought by the Defendant in Motion Sequence #003 dismissing the Plaintiffs' complaint pursuant to CPLR § 3211 [a] [7] is GRANTED, without prejudice, and it is further;
ORDERED, that the relief sought by the Defendant in Motion Sequence #004 dismissing the Plaintiffs' complaint pursuant to CPLR § 3211 [a] [3] and CPLR § 3211 [a] [7] is GRANTED, without prejudice, and it is further;
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
Memorandum Decision
I. Procedural History
Plaintiffs commenced the instant action for trespass by service of a summons and verified complaint upon the Defendants on or about October 28, 2022. Plaintiffs allege that Defendants have trespassed onto Plaintiff's property and Defendants have damaged Plaintiff's property. Plaintiffs seek (1) Defendants to pay damages for the trespass in an amount not less than $100,000.00; (2) Defendants to pay for actual damages to Plaintiffs' property in an amount not less than $100,000.00; (3) Defendants to be ejected from the portion of the Plaintiffs' property that they have allegedly encroached upon; (4) Defendants to pay damages for their unjust enrichment by allegedly encroaching on Plaintiff's property in an amount not less than $100,000.00; and (5) Defendants to pay damages in the amount of not less than $100,000.00 for allegedly committing civil assault against the Plaintiffs.
Defendant Frantz Lorrius filed Motion Sequence #003 on February 6, 2023 seeking to dismiss the Plaintiffs' summons and verified complaint pursuant to CPLR § 3211 [a] [7] for failing to present evidence of ownership interest in the disputed alleyway by means of a deed and current land survey, to properly plead and show standing in an action for trespass as alleged in the complaint. Defendants filed opposition on February 8, 2023.
Defendant Jean Lorrius filed Motion Sequence #004 on February 11, 2023 seeking to dismiss the Plaintiffs' summons and verified complaint pursuant to CPLR § 3211 [a] [3] and CPLR § 3211 [a] [7] for failing to present evidence of ownership interest in the disputed alleyway by means of a deed and current land survey, to properly plead and show standing in an action for trespass as alleged in the complaint. Defendants filed opposition on March 13, 2023. On March 20, 2023, the Defendant waived reply on the record. Oral argument was heard by the Court on Motion Sequence #003 and Motion Sequence #004 on March 20, 2023.
II. Facts
Plaintiffs seek to recover damages for trespass, property damage, unjust enrichment, and civil assault. Plaintiffs also seeks the ejectment and recovery of real property. Plaintiffs allege that they are the owners of the premises located at 140 Lyman Avenue, Staten Island, New York 10305. In or about September 2022, Defendants purchased the property located at 138 Lyman Avenue, Staten Island, New York 10305. Plaintiffs contend that at the time Defendants purchased the property next door, the parties' respective properties were separated by a metal railing and that towards the back of the properties, the properties were separated by a decorative, non-weightbearing wall with columns. According to the Plaintiffs, the two properties also share a concrete stairway leading towards the back of the properties, with about two thirds (2/3) of the staircase being on the Plaintiffs' property and one third (1/3) being on Defendants' property.
Plaintiffs claim that in October 2022, without their approval, or notice to them, Defendants installed a gate with a lock at the bottom of the staircase, removed the railing that separated the two properties, and left the railing on the floor towards the Plaintiffs' property. Plaintiffs also maintain that without notice or an attempt to obtain their approval, Defendants built a wall on top of the decorative non-weightbearing wall between the columns. Plaintiffs further allege that when the Plaintiffs confronted the Defendants regarding the gate and railing, Defendants and their agents reacted angrily and violently, threatening violence, if Plaintiffs attempted to come near the gate.
On or about October 28, 2022, Plaintiffs commenced this action by summons and verified complaint. Plaintiffs are seeking damages for the Defendants' newly installed gate and the wall that allegedly trespass on to their property, the Defendants' removal of the railing that was on the Plaintiffs' property, the construction on top of the Plaintiffs' decorative wall, and for the increased risk of further damage by rainwater and the possibility of collapse of the wall due to its construction. Plaintiffs seek further damages for Defendants unjust enriched by encroachment on Plaintiffs' property; Plaintiffs' loss of access and use of their property, and for Defendants alleged threats physical violence towards Plaintiffs.
On February 6, 2023, Defendant Frantz Lorrius filed Motion Sequence #003 by notice of motion seeking dismissal of the Plaintiffs' summons and verified complaint for trespass pursuant to CPLR § 3211 [a] [7]. On February 11, 2023, Defendant Jean Lorrius filed Motion Sequence #004 by notice of motion seeking dismissal of the Plaintiffs' summons and verified complaint for trespass pursuant to CPLR § 3211 [a] [7] and CPLR § 3211 [a] [7].
On February 8, 2023, Plaintiffs filed opposition to Motion Sequence #003. On March 13, 2023, Plaintiffs filed opposition to Motion Sequence #004. On March 20, 2023, Defendants waived reply on both motions and parties made their oral arguments on both motions.
III. Discussion
"Under CPLR § 3211 [a] [1], a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (see Leon v Martinez, 84 N.Y.2d 83 [1994] citing Heaney v Purdy, 29 N.Y.2d 157 [1971]). A motion to dismiss pursuant to CPLR § 3211 [a] [7], requires a reading of the pleadings to determine whether a legally recognizable cause of action can be identified and that it is properly pled. (see Guggenheimer v Ginzburg, 43 N.Y.2d 268 [1977]).
"In determining a motion to dismiss an action for failure to make out a prima facie case, the plaintiff's evidence must be accepted as true and given the benefit of every reasonable inference which can reasonably be drawn from that evidence. The motion should only be granted if there is no rational process by which a fact-finder could find for the plaintiff as against the moving defendant" (see Wai Foon Chan v Yuk Sim Chan, 193 A.D.2d 575 [2d Dept 1993] citing Bodeanu v Bertorelli, 170 A.D.2d 424 [2d Dept 1991]; Secof v. Greens Condominium, 158 A.D.2d 591 [2d Dept 1990]).
The Court, however, has imposed certain limitations on this policy of viewing the Plaintiff's evidence in the most favorable light when determining if a prima facie case exists. "The plaintiffs contend that their complaint is sufficient since on a motion to dismiss, the allegations in a complaint are presumed to be true. While it is axiomatic that a court must assume the truth of the complaint's allegations, such an assumption must fail where there are conclusory allegations lacking factual support" (see Elsky v KM Ins. Brokers, 139 A.D.2d 691 [2d Dept] citing Mazur v. Ryan, 98 A.D.2d 974 [4th Dept 1983], appeal dismissed 61 N.Y.2d 832 [1984]).
"The essential elements of a cause of action sounding in trespass are the intentional entry into the land of another without justification or permission" (see Wheeler v Del Duca, 151 A.D.3d 1005 [2d Dept 2017] citing Boring v Town of Babylon, 147 A.D.3d 892 [2d Dept 2017]; Julia Props., LLC v Levy, 137 A.D.3d 1224 [2d Dept 2016]). "A trespass cause of action may only be maintained by one entitled to possess the subject property. Ownership alone is insufficient" (see id citing Cornick v. Forever Wild Dev. Corp., 240 A.D.2d 980 [3rd Dept]). A "plaintiff's failure to specifically plead the right to possession of land..., where the trespass allegedly occurred, is fatal to her trespass claim" (see Wheeler v Del Duca, 151 A.D.3d 1005 [2d Dept 2017]).
"It is conceded that the action is in trespass and that possession is an essential element of the cause of action. [T]he rule of favorable inferences cannot be operated to supply an essential element that is missing from the pleading, and that nowhere in the complaint are facts alleged from which it could be found that plaintiff had actual possession or was entitled to possession at the time (see Kelman v Wilen, 283 AD 1113 [2d Dept 1954]).
In an action to recover damages for trespass, a plaintiff submitting the deed to the property in question, establishes prima facie, that it was the record owner. (see Skyview Motel, LLC v Wald, 82 A.D.3d 1081 [2d Dept 2011]). "The construction of deeds is a matter of law" (see Hartmann v Harris, 136 A.D.3d 977 [2d Dept 2016] citing Blangiardo v Horstmann, 32 A.D.3d 876 [2d Dept 2006]). "Every instrument creating [or] transferring... an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument and is consistent with the rules of law" (see id citing NY Real Property Law § 240 ; De Paulis Holding Corp. v Vitale, 66 A.D.3d 816 [2d Dept 2009]).
The plaintiff has the burden of showing ownership or right of possession. In Duggan v. Hvland, (see 376 N.Y.S.2d 49 [4th Dept 1975]) the court stated: "The burden of showing ownership in this driveway dispute is upon the plaintiffs. 'He must prevail upon the strength of his own title, not upon the weakness of his adversary's.' (see Judd v Quick, 177 AD 121 [3rd Dept 1917]; Sheridan v Cardwell, 141 AD 854 [2d Dept 1910])." (see 14 Warren's Weed New York Real Property § 139.24 [1] [April 2023]).
In matters involving trespass, maps and deeds may be submitted in admissible form, as documentary evidence. "The maps may be referred to in interpreting the descriptions of the subject properties contained in the various deeds[.]" (see Collins v Tashjian, 124 A.D.2d 629 [2d Dept 1986] citing Brookhaven v Dinos, 76 A.D.2d 555 [2d Dept 1980])."'Title' has respect to that which is the subject of ownership, and is that which is the foundation of ownership, and with a change of title, the right of property, the ownership passes. 'Property' is a thing owned, that to which a person has, or may have a legal title." (see Springfield Fire & Marine Ins. Co. v Allen, 43 NY 389 [1871]).
Defendant cites the Third Department case, Cornick v Forever Wild Dev. Corp., 240 A.D.2d 980 [3rd Dept 1997], which maintains the Plaintiff has the burden of proving title to the property in question as a prerequisite to their trespass action.
We also conclude that Supreme Court properly dismissed that part of plaintiff's claim grounded in trespass. A trespass action may only be maintained by one entitled to possess that property; ownership alone is insufficient (see Stay v Horvath, 177 A.D.2d 897 [3rd Dept 1991]; Meadow Point Props. v Mazzaferro & Sons, 219 N.Y.S.2d 908 [Sup Ct. Suffolk County 1961]). Therefore, the failure to specifically plead and prove the right to possession is fatal to a trespass claim (see Meadow Point Props. v Mazzaferro & Sons, 219 N.Y.S.2d 908 [Sup Ct. Suffolk County 1961]). Here, as the complaint did not allege that plaintiff had the right to possess the parcel, and since the record is devoid of any evidence of such a right, Supreme Court properly dismissed the trespass claim (see Stay v Horvath, 177 A.D.2d 897 [3rd Dept 1991]). (see Cornick v Forever Wild Dev. Corp., 240 A.D.2d 980 [3rd Dept 1997]).
Plaintiffs commenced the instant action for trespass by service of a summons and verified complaint upon the Defendants on or about October 28, 2022, contending that Defendants have trespassed on their property. They stated in their complaint that they are the owners of 140 Lyman Avenue, Staten Island, New York, and they have claimed an ownership interest in the alley way, however, they have not provided a deed as evidence to support their claims.
Plaintiffs have the burden of proving title to the boundary property as a prerequisite to their action for trespass. Plaintiffs' inclusion of a 2014 survey of the property dated 2014 (NY St Cts Filing [NYSCEF] Doc No. 39) is insufficient to support the Plaintiffs' claim of title to the disputed property because it is not a deed and does not show the correspondence between the survey and the descriptions found in the Plaintiffs' title documents, specifically in the schedule A of Plaintiffs' deed.
Plaintiffs must present evidence of an ownership interest in the disputed property by means of a deed and current land survey, to properly plead and show standing to bring an action in trespass as alleged in the complaint. Plaintiffs make a conclusionary assertation of ownership and they failed provide a deed or other suitable document of title. The only document provided is a survey that is almost ten years old. A deed is legal evidence of title and provides the metes and bounds of a specific piece of property, in a Schedule A. Plaintiffs failed to establish that they are entitled to possess the property in the alley. This is a fatal error to an action in a Trespass action.
Accordingly, the relief sought by the Defendant in Motion Sequence #003 dismissing the Plaintiffs' complaint pursuant to CPLR § 3211 [a] [7] is GRANTED, without prejudice, and further;
The relief sought by the Defendant in Motion Sequence #004 dismissing the Plaintiffs' complaint pursuant to CPLR § 3211 [a] [3] and CPLR § 3211 [a] [7] is GRANTED, without prejudice.
Decretal Paragraphs
It is hereby ORDERED, that the relief sought by the Defendant in Motion Sequence #003 dismissing the Plaintiffs' complaint pursuant to CPLR § 3211 [a] [7] is GRANTED, without prejudice, and it is further;
ORDERED, that the relief sought by the Defendant in Motion Sequence #004 dismissing the Plaintiffs' complaint pursuant to CPLR § 3211 [a] [3] and CPLR § 3211 [a] [7] is GRANTED, without prejudice, and it is further;
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
The foregoing shall constitute the Decision and Order of this Court.