You are here: / / Question of Fact Whether Encroaching Hedge Was De Minimus Encroachment...
,

Question of Fact Whether Encroaching Hedge Was De Minimus Encroachment Re: Adverse Possession

The Second Department determined there was a question of fact about whether a hedge which encroached eight feet into plaintiff’s right of way was a “de minimus” encroachment within the meaning of the Real Property Actions and Proceedings Law (RPAPL) (re: adverse possession):

RPAPL 543(1), which was enacted in 2008, provides: “Notwithstanding any other provision of this article, the existence of de [minimis] non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse.” The plaintiff contends that pursuant to RPAPL 543(1), the existence of all encroaching hedges and shrubbery, no matter how large, shall be deemed permissive and non-adverse. Under the plaintiff’s interpretation of the statute, the list of examples contained in RPAPL 543(1) are examples of “de [minimis] non-structural encroachments.” We reject this interpretation. The more reasonable interpretation of RPAPL 543(1) is that the list contains examples of “non-structural encroachments” which could still be adverse if they are not de minimis. This reading gives effect to the words “de [minimis],” while the plaintiff’s interpretation would render those words superfluous. “It is a cardinal principle to be observed in construing legislation that . . . whenever practicable, effect must be given to all the language employed. Our duty is to presume that each clause . . . has a purpose” … . Wright v Sokoloff, 2013 NY Slip Op 06856, 2nd Dept 10-23-13

 

You might also like
PURSUANT TO THE RECENTLY ENACTED FORECLOSURE ABUSE PREVENTION ACT (FAPA) THE BANK COULD NOT TAKE ADVANTAGE OF THE SIX-MONTH EXTENSION OF THE STATUTE OF LIMITATIONS BECAUSE THE FORECLOSURE ACTION WAS DISMISSED AS ABANDONED (SECOND DEPT). ​
THE FORUM SELECTION CLAUSE IN THE NURSING HOME ADMISSION AGREEMENT WAS VALID AND ENFORCEABLE (SECOND DEPT).
EVIDENCE OF PHYSICAL INJURY LEGALLY INSUFFICIENT, ROBBERY AND BURGLARY FIRST CONVICTIONS REDUCED (SECOND DEPT). ​
THE EVIDENCE DID NOT SUPPORT THE FINDING MOTHER NEGLECTED HER TWO-MONTH OLD CHILD BY EXPOSING THE CHILD TO DOMESTIC VIOLENCE; THAT THE CHILD MAY HAVE HEARD LOUD ARGUING BEFORE GRANDMOTHER TOOK THE CHILD TO HER APARTMENT WAS NOT ENOUGH (SECOND DEPT).
DEFENDANT DID NOT PRESENT EVIDENCE THAT THE AREA WHERE PLAINTIFF SLIPPED AND FELL ON ICE WAS INSPECTED OR TREATED ON THE DAY OF THE FALL, THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
LAW REGARDING SALE OF PROPERTY OWNED BY TENANTS BY THE ENTIRETY WHERE ONLY ONE SPOUSE SIGNS THE CONTRACT EXPLAINED (SECOND DEPT).
EMERGENCY DOCTRINE DID NOT JUSTIFY ENTRY INTO HOME, EXPLOSIVES, DRUGS, GUNS, FORGED CURRENCY SUPPRESSED.
THEORIES OF LIABILITY FOR DAMAGE TO A PARTY WALL EXPLAINED.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Note and Mortgage Void as Usurious Question of Fact About Whether Rider Assumed Risk of Being Kicked by Horse—Allegations...