| Carlson v Zimmerman |
| 2009 NY Slip Op 04849 [63 AD3d 772] |
| June 9, 2009 |
| Appellate Division, Second Department |
| Henry B. Carlson et al., Respondents, v Erwin B.Zimmerman et al., Appellants, et al., Defendants. |
—[*1] Esseks, Hefter & Angel, LLP, Riverhead, N.Y. (Stephen R. Angel and Anthony C. Pasca ofcounsel), for respondents.
In an action, inter alia, to recover damages for trespass, the defendants Erwin B.Zimmerman, Martha Zimmerman, Stephen Schoenfeldt, John H. Clary, Barbara J. Clary, andEagle Excavating, Inc., appeal from an order of the Supreme Court, Suffolk County (R. Doyle,J.), dated September 4, 2007, which granted the plaintiffs' motion for summary judgment on theissue of liability on their first and second causes of action and for summary judgment dismissingthe defendants' counterclaims as time-barred.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the plaintiffs' motion which was for summary judgment dismissing the defendants'counterclaims as time-barred to the extent that those counterclaims allege damages resultingfrom erosion of the defendants' properties caused by the plaintiffs' activities, and substitutingtherefor a provision denying that branch of the plaintiffs' motion to that extent; as so modified,the order is affirmed, without costs or disbursements.
The Supreme Court properly found that the plaintiffs were entitled to summary judgment onthe issue of liability on their first cause of action, which was to recover damages for trespass, andtheir second causes of action, pursuant to which the plaintiffs sought to enjoin the defendants'alleged continuing trespass. "Trespass is an intentional entry onto the land of another withoutjustification or permission" (Woodhullv Town of Riverhead, 46 AD3d 802, 804 [2007]). Here, the plaintiffs satisfied theirprima facie burden of establishing their entitlement to judgment as a matter of law on the issue ofliability in connection with these causes of action by demonstrating that the defendantsintentionally entered onto the land belonging to the plaintiffs "without justification orpermission" (id.; see Long Is. Gynecological Servs. v Murphy, 298 AD2d 504[2002];Golonka v Plaza at Latham, 270 AD2d 667, 669 [2000]). In opposition, the defendantsfailed to raise a triable issue of fact as to whether they either had "a lawful right to enter theseproperties or had the owner's permission" (State of New York v Johnson, 45 AD3d 1016, 1019 [2007]).Accordingly, the Supreme Court properly granted that branch of the plaintiffs' motion which wasfor summary judgment on the issue of liability on these causes of action (see CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animalsv Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]).[*2]
The Supreme Court erred, however, in granting thatbranch of the plaintiffs' motion which was to dismiss the defendants' counterclaims astime-barred insofar as the counterclaims pertained to erosion of the defendants' properties causedby the plaintiffs' activities. Under CPLR 203 (d), "claims and defenses that arise out of the sametransaction as a claim asserted in the complaint are not barred by the Statute of Limitations, eventhough an independent action by defendant might have been time-barred at the time the actionwas commenced" (Bloomfield v Bloomfield, 97 NY2d 188, 193 [2001]). "Theprovisions of CPLR 203 (d) allow a defendant to assert an otherwise untimely claim which aroseout of the same transactions alleged in the complaint, but only as a shield for recoupmentpurposes, and does not permit the defendant to obtain affirmative relief" (DeMille v DeMille, 5 AD3d 428,429 [2004]; see Delta Funding Corp. vMurdaugh, 6 AD3d 571, 571-572 [2004]; Rothschild v Industrial Test Equip. Co.,203 AD2d 271, 272 [1994]). Here, there is evidence that some of the defendants' trespassingactivities were undertaken in an attempt to correct damage that the plaintiffs admitted to havingcaused by excavating too deeply into their land abutting properties belonging to the defendants,and failing to leave a sufficient buffer area along the border. It is undisputed that these activitiescaused erosion on the affected properties, allegations concerning which form the basis ofportions of the defendants' counterclaims. Accordingly, the Supreme Court should have deniedthat branch of the plaintiffs' motion which was to dismiss the counterclaims as time-barred to theextent that the damages sought in the counterclaims are for the erosion caused by the plaintiffs'excavating activities, and/or to reimburse the defendants' costs in attempting to correct theresulting damage. These damages should be applied to offset any damages award in favor of theplaintiffs and against the defendants (cf. Delta Funding Corp. v Murdaugh, 6 AD3d at571-572; DeMille v DeMille, 5 AD3d at 429). Spolzino, J.P., Covello, Angiolillo andDickerson, JJ., concur.