| Mendoza v Plaza Homes, LLC |
| 2008 NY Slip Op 07880 [55 AD3d 692] |
| October 14, 2008 |
| Appellate Division, Second Department |
| Maria M. Mendoza et al., Appellants, v Plaza Homes, LLC, etal., Respondents. (And a Third-Party Action.) |
—[*1] Trop & Spindler, Whitestone, N.Y. (Gail E. Spindler of counsel), for respondents Plaza Homes,LLC, Alfred Basal, Haban Construction Corp., and Habibollah Vafai.
In an action to recover damages for injury to property and for a judgment declaring that a houseerected upon premises owned by the defendants Plaza Homes, LLC, and Alfred Basal at 175-12 90thAvenue in Jamaica encroaches upon the premises owned by the plaintiffs at 90-01 175th Street inJamaica, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court,Queens County (Rosengarten, J.), entered April 30, 2007, as denied their motion to reject the report ofa judicial hearing officer (Leviss, J.H.O.), dated October 18, 2006, made after a hearing, finding thatthe house erected on premises owned by the defendants Plaza Homes, LLC, and Alfred Basal does notencroach on their premises, granted the cross motion of the defendants Plaza Homes, LLC, AlfredBasal, Haban Construction Corp., and Habibollah Vafai to confirm the report, and directed judgment infavor of the defendants and against them dismissing the second cause of action to recover damages forinjury to property and, in effect, declaring that the house erected on the premises owned by thedefendants Plaza Homes, LLC, and Alfred Basal does not encroach on their premises.
Ordered that the order is affirmed insofar as appealed from, with costs, and the matter is remittedto the Supreme Court, Queens County, for the entry of a judgment, inter alia, declaring that the houseerected on the premises owned by the defendants Plaza Homes, LLC, and Alfred Basal at 175-1290th Avenue in Jamaica does not encroach on the premises owned by the plaintiffs at 90-01 [*2]175th Street in Jamaica.
The plaintiffs urge this Court to consider evidence that was not introduced at the hearing before thejudicial hearing officer (hereinafter the JHO), and that was not before the JHO at the time when theJHO rendered the report that is the subject of this appeal. However, "[m]atter dehors the record is notto be considered on appeal" (Krzyanowski vEveready Ins. Co., 28 AD3d 613 [2006]; see Juarbe v City of New York, 303AD2d 462 [2003]; Matter of Hogg v Cianciulli, 247 AD2d 474 [1998]; Carhuff vBarnett's Bake Shop, 54 AD2d 969 [1976]). "[A]ppellate review is limited to the record made atthe nisi prius court and, absent matters which may be judicially noticed, new facts may not be injectedat the appellate level" (Block v Magee, 146 AD2d 730, 732 [1989]). Even were we to takejudicial notice of a stop-work order issued by the New York City Department of Buildings (seegenerally Brandes Meat Corp. v Cromer, 146 AD2d 666, 667 [1989]), its contents would notjustify disturbing the recommendations made in the report of the JHO, which were confirmed by theSupreme Court.
The plaintiffs contend that they were denied the effective assistance of trial counsel. " '[I]n thecontext of civil litigation, an attorney's errors or omissions are binding on the client and, absentextraordinary circumstances, a claim of ineffective assistance of counsel will not be entertained' " (Matter of Robinson, 44 AD3d 961,961 [2007], quoting Matter of Saren v Palma, 263 AD2d 544, 545 [1999]; see Matter of Cichosz v Cichosz, 12 AD3d598, 599 [2004]; Matter of Ketcham vCrawford, 1 AD3d 359, 361 [2003]; Department of Social Servs. v Trustum C.D.,97 AD2d 831 [1983]). The plaintiffs failed to demonstrate the existence of extraordinarycircumstances. Additionally, their reliance on Dwyer v Nicholson (193 AD2d 70, 76-77[1993]), is misplaced.
We find no basis to impose a sanction against the plaintiffs.
Since this is, in part, a declaratory judgment action, the matter must be remitted to the SupremeCourt, Queens County, for the entry of a judgment, inter alia, declaring that the house erected onpremises owned by the defendants Plaza Homes, LLC, and Alfred Basal at 175-12 90th Avenue inJamaica does not encroach on premises owned by the plaintiffs at 90-01 175th Street in Jamaica(see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74[1962], cert denied 371 US 901 [1962]). Rivera, J.P., Dillon, Covello and Angiolillo, JJ.,concur.