| Tesone v Hoffman |
| 2011 NY Slip Op 04450 [84 AD3d 1219] |
| May 24, 2011 |
| Appellate Division, Second Department |
| John C. Tesone et al., Respondents, v Deborah A.Hoffman, Appellant. |
—[*1] Van DeWater & Van DeWater, LLP, Poughkeepsie, N.Y. (Rebecca A. Valk of counsel), forrespondents.
In an action pursuant to RPAPL article 15 to compel the determination of a claim to realproperty and for injunctive relief, the defendant appeals from an order of the Supreme Court,Dutchess County (Wood, J.), dated December 20, 2010, which denied her cross motion todismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action and tovacate an ex parte temporary restraining order contained in an order to show cause of the samecourt dated May 13, 2010.
Ordered that the order dated December 20, 2010, is modified, on the law, by deleting theprovision thereof denying that branch of the defendant's cross motion which was to vacate the exparte temporary restraining order and substituting therefor a provision granting that branch of thecross motion; as so modified, the order is affirmed, without costs or disbursements.
The parties, who own adjoining property, are disputing the boundary between their twoparcels of real property. The amended complaint asserts a cause of action to fix a "practicallocation" of a boundary line, by which the plaintiffs seek, inter alia, a judgment declaring them tobe the lawful fee owners of a strip of disputed land. The amended complaint describes thedisputed land as being bounded by a fence, a basketball pole, certain trees, and other markers.The plaintiffs moved, by order to show cause, for a preliminary injunction prohibiting thedefendant from taking any steps to remove, damage, destroy, or cut any trees or vegetationlocated on the disputed land, pending the outcome of the litigation. In the order to show cause,the Supreme Court temporarily restrained the defendant from engaging in that conduct pendinghearing and determination of the motion for a preliminary injunction. The defendant cross-movedto dismiss the amended complaint pursuant to, inter alia, CPLR 3211 (a) (7), on the ground thatthe pleading fails to state a cause of action, as it does not describe the location of the disputedproperty with the requisite particularity mandated by RPAPL 1515. In the same cross motion, thedefendant sought to vacate the ex parte temporary restraining order.
In the order appealed from, dated December 20, 2010, the Supreme Court denied thedefendant's cross motion in all respects. We modify.
"Practical location of a boundary line, to be effectual, 'must be an act of the parties, eitherexpress or implied; and it must be mutual, so that both parties are equally affected by it. It mustbe definitely and equally known, understood and settled. If unknown, uncertain, or disputed, itcannot be a line practically located' " (Adams v Warner, 209 App Div 394, 397 [1924],quoting Hubbell v McCulloch, 47 [*2]Barb 287, 299[1866]). While CPLR 3016 does not require such a cause of action to be pleaded withparticularity, RPAPL 1515 (2) requires the complaint asserting that cause of action to "describethe property claimed with common certainty." The "common certainty" standard is met if, fromthe complaint's description of the disputed property location, it may be delivered to the partyentitled to possession (see Valentine v Smith, 90 AD2d 919, 919-920 [1982]). Here, theSupreme Court correctly determined that the amended complaint adequately described landfixtures and monuments forming the practical location of the alleged boundary line. Thedefendant's remaining arguments for dismissal fail since we must accept the allegations of theamended complaint as true and accord them the benefit of every possible favorable inference(see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Datena v JP Morgan ChaseBank, 73 AD3d 683, 684 [2010]). We note, however, that our determination is not intendedto imply that we believe that the plaintiffs will ultimately be successful in this action.
The plaintiffs' motion for a preliminary injunction has not been decided. Nonetheless, theplaintiffs should not have received the benefit of a temporary restraining order. The initialtemporary restraining order, set forth in the order to show cause by which the plaintiffs initiatedtheir motion for a preliminary injunction, should not have been granted ex parte since theplaintiffs failed to allege or demonstrate "significant prejudice to the party seeking the restrainingorder by the giving of notice" (22 NYCRR 202.7 [f]). Moreover, on this record, the plaintiffshave not demonstrated a right to a temporary restraining order since their submissions did notshow the danger of "immediate and irreparable injury, loss or damages" if the temporaryrestraining order were not granted (CPLR 6313 [a]). Accordingly, the Supreme Court shouldhave granted that branch of the defendant's cross motion which was to vacate the ex partetemporary restraining order contained in the order to show cause dated May 13, 2010. Dillon,J.P., Balkin, Eng and Roman, JJ., concur.