Opinion
2004976NC.
Decided May 19, 2005.
Appeal by defendants, as limited by their brief, from so much of an order of the District Court, Nassau County (K. Gartner, J.), dated December 2, 2003, as denied that branch of their motion which sought to dismiss plaintiffs' cause of action to recover damages for nuisance.
Order unanimously affirmed without costs.
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
Plaintiffs and defendants are next-door neighbors. Plaintiffs sought to recover damages caused by an extensive bamboo condition which appears to have begun growing in defendants' backyard and subsequently spread into plaintiffs' backyard, allegedly destroying some of plaintiffs' shrubbery and landscaping. In a series of letters between counsel, in which plaintiffs' counsel informed defense counsel that the bamboo posed an imminent threat to plaintiffs' property, several attempts were made to arrange for defendants' inspection of the bamboo condition on plaintiffs' property before plaintiffs would be required to remediate the condition. Immediately before defendants' scheduled inspection of the property, plaintiffs had the bamboo condition removed since they feared that the encroaching bamboo was threatening to destroy the foundation of their home, retaining wall and swimming pool. Defendants thereupon moved to dismiss the complaint based upon spoliation of evidence. Insofar as is relevant hereto, the court denied that branch of the motion which sought to dismiss the cause of action to recover damages for nuisance, and the instant appeal ensued.
We agree with the conclusions reached by the court below, for the reasons stated in its decision dated December 2, 2003 (1 Misc 3d 902[A], 2003 NY Slip Op 51482[U]), that the removal of the bamboo was not done in bad faith to harm defendant's litigation posture, but rather for purposes of mitigation of damages ( see also Popfinger v. Terminix Intl. Co. Ltd. Partnership, 251 AD2d 564). Moreover, defendants, who lived next door to the condition for several years, and who were in possession of photographs taken by their insurance adjuster (albeit prior to the litigation) as well as by plaintiffs, were unable to show that they were deprived of their ability to establish their defense.