| 1212 Ocean Ave. Hous. Dev. Corp. v Brunatti |
| 2008 NY Slip Op 04064 [50 AD3d 1110] |
| April 29, 2008 |
| Appellate Division, Second Department |
| 1212 Ocean Avenue Housing Development Corporation,Respondent, v Deborah Brunatti, Appellant. |
—[*1] Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C., Yonkers, N.Y. (StephenI. Wohlberg of counsel), for respondent.
In an action, inter alia, to recover damages for nuisance, trespass, and negligence, thedefendant appeals, as limited by her brief and by a letter dated January 3, 2008, from so much ofan order of the Supreme Court, Kings County (Schmidt, J.), dated May 9, 2007, as denied hermotion to impose a sanction pursuant to 22 NYCRR 130-1.1, and, in effect, denied herapplication to search the record and award her summary judgment dismissing the complaint.
Ordered that on the Court's own motion, that portion of the notice of appeal which purportsto appeal as of right from so much of the order as, in effect, denied the defendant's application tosearch the record and award summary judgment in her favor dismissing the complaint, is deemedto be an application for leave to appeal from that portion of the order, and leave to appeal isgranted (see CPLR 5701 [c]); and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof, in effect,denying that branch of her application which was to search the record and award her summaryjudgment dismissing the third cause of action to recover damages for trespass and substitutingtherefor a provision granting that branch of the defendant's application and, upon searching therecord, awarding her summary judgment dismissing the third cause of action to recover damagesfor trespass; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.[*2]
The plaintiff and the defendant are adjoining propertyowners. The two properties are separated by a 10-foot high retaining wall, which was erected in1924 when an apartment building was constructed on the plaintiff's premises. The plaintiffalleges that an elm tree planted on the defendant's property more than 40 years ago grew over thecourse of time so that its trunk came to rest atop the retaining wall. The roots of this tree alsoallegedly damaged the retaining wall, causing it to crack and curve. In December 2004 the NewYork City Department of Buildings issued a summons to the plaintiff, requiring it to correct thedefective condition of the retaining wall. Shortly thereafter, the plaintiff commenced this actionagainst the defendant, inter alia, to recover damages for nuisance, trespass, and negligence.Approximately four months later, the defendant caused the subject tree to be removed. Aftersome discovery was conducted, the defendant moved to impose a sanction against the plaintiffpursuant to 22 NYCRR 130-1.1 (c), and the plaintiff cross-moved to renew its cross motion forsummary judgment on the complaint, which had been denied in an order of the same court datedJuly 20, 2005. In response to the cross motion, the defendant asked the court to search the recordand award summary judgment in her favor dismissing the complaint, arguing, among otherthings, that the defective condition of the retaining wall had not been caused by tree roots, andthat the plaintiff could not maintain an action for damages because it had not engaged in self-helpto remedy the situation. The Supreme Court denied the defendant's motion for the imposition of asanction, and, in effect, denied the defendant's application to search the record and award hersummary judgment.
Contrary to the defendant's contention, the Supreme Court properly, in effect, denied thosebranches of her application which were to search the record and award her summary judgmentdismissing the plaintiff's causes of action to recover damages for nuisance and negligence. Theunsworn reports from two engineers the defendant submitted in support of her application werenot in admissible form, and thus were insufficient to establish, as a matter of law, that the treeroots did not damage the plaintiff's retaining wall (see Ellis v Willoughby Walk Corp. Apts., 27 AD3d 615 [2006];Cannon v New York City Tr. Auth., 213 AD2d 303 [1995]; Hagan v General MotorsCorp., 194 AD2d 766 [1993]). Furthermore, while it has been recognized that a propertyowner may resort to self-help to remove tree roots encroaching upon his or her property (seeLoggia v Grobe, 128 Misc 2d 973 [1985]; Turner v Coppola, 102 Misc 2d 1043[1980], affd 78 AD2d 781 [1980]; Ferrara v Metz, 49 Misc 2d 531 [1966]), andthat this may constitute a sufficient remedy in some circumstances, the defendant failed todemonstrate that self-help would have been practicable here, where it is undisputed that the treeroots rested entirely on her property (see Norwood v City of New York, 95 Misc 2d 55[1978]).
However, the court should have granted that branch of the application which was to searchthe record and award summary judgment in favor of the defendant dismissing the plaintiff's thirdcause of action, which seeks damages for trespass. Since the tree roots rested entirely upon thedefendant's property, there was no intentional intrusion or entry onto the plaintiff's propertywhich could constitute trespass (see Ivancic v Olmstead, 66 NY2d 349 [1985], certdenied 476 US 1117 [1986]; Curwin v Verizon Communications [LEC], 35 AD3d 645 [2006]).
The court providently exercised its discretion in denying the defendant's motion to impose asanction (see 22 NYCRR 130-1.1; CLR Brooklyn Realty Corp. v Shapiro, 39 AD3d 790 [2007]).Mastro, J.P., Covello, Dickerson and Eng, JJ., concur.