| Thomson v Nayyar |
| 2011 NY Slip Op 09624 [90 AD3d 1024] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Peter Thomson et al., Respondents, v Ashok Nayyar et al.,Appellants. |
—[*1] Hogan & Rossi, Brewster, N.Y. (David Simon of counsel), for respondents.
In an action, inter alia, for ejectment, the defendants appeal, as limited by their brief, from somuch of an order of the Supreme Court, Westchester County (Loehr, J.), entered July 14, 2010,as granted those branches of the plaintiffs' motion which were for summary judgment declaringthat the plaintiffs are the owners of a portion of the subject real property upon which a fence,tree, shrubs, and flowers encroached, ejecting them from that portion of the real property,directing them to remove the encroachments and restore the property to its pre-encroachmentcondition, and enjoining them from continuing to encroach or trespass upon the plaintiffs'property.
Ordered that on the Court's own motion, the notice of appeal by the defendant Ashok Nayyardated August 11, 2010, is deemed also to be a notice of appeal by the defendant Nalene NathNayyar (see CPLR 2001; Matter of Tagliaferri v Weiler, 1 NY3d 605 [2004]);and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, and those branches ofthe plaintiffs' motion which were for summary judgment declaring that the plaintiffs are theowners of a portion of the subject real property upon which a fence, tree, shrubs, and flowersencroached, ejecting the defendants from that portion of the real property, directing thedefendants to remove the encroachments and restore the property to its pre-encroachmentcondition, and enjoining the defendants from continuing to encroach or trespass upon theplaintiffs' property are denied; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The plaintiffs own a parcel of real property in North Salem. The defendants own an adjacentparcel of real property. In June 2008 the plaintiffs commenced this action, inter alia, forejectment, alleging, among other things, that the defendants owned a fence, a tree, shrubs, andflowers which encroached on the plaintiffs' property. After the defendants joined issue, theplaintiffs moved for summary judgment. In an order entered July 14, 2010, the Supreme Court,inter alia, granted those branches of the plaintiffs' motion which were for summary judgmentdeclaring that they are the owners of a portion of the subject real property upon which a fence,tree, shrubs, and flowers encroached, ejecting the defendants from that portion of the realproperty, directing the [*2]defendants to remove theencroachments and restore the property to its pre-encroachment condition, and enjoining thedefendants from continuing to encroach or trespass upon the plaintiffs' property. We reverse theorder insofar as appealed from.
In support of their motion, and to establish the defendants' alleged encroachment, theplaintiffs submitted a survey by a certified surveyor which depicted, among other things, theproperty lines and the defendants' fence allegedly encroaching on the plaintiff's property.However, this survey did not constitute competent evidence of the alleged encroachment, as itwas not accompanied by an affidavit of the surveyor (see Greenberg v Manlon Realty, 43AD2d 968, 969 [1974]; see also Seamanv Three Vil. Garden Club, Inc., 67 AD3d 889, 890 [2009]; City of New York v Gowanus Indus. Park,Inc., 65 AD3d 1071, 1073 [2009]; Patterson v Palmieri, 284 AD2d 852, 853[2001]). Moreover, to the extent that the other evidence submitted by the plaintiffs in support oftheir motion addressed the issue of the defendants' alleged encroachment onto the plaintiffs'property, the relevant assertions and depictions were based on the inadmissible survey and theboundary markers placed in connection therewith. Accordingly, the plaintiffs failed to establishtheir prima facie entitlement to judgment as a matter of law on their motion. Since the plaintiffsfailed to meet their prima facie burden, we need not review the sufficiency of the defendants'opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).
In light of our determination, we need not reach the parties' remaining contentions.Angiolillo, J.P., Dickerson, Hall and Sgroi, JJ., concur.