The Second Department, modifying Supreme Court, determined plaintiffs’ property did not lose all its value, as the trial judge found, in this trespass action, but instead the value was decreased by $325,000. In addition, plaintiffs were entitled to punitive damages and the defendants were required to tear down the encroaching structures. Plaintiffs own a single family house. Defendants built a six-story structure next door. Defendants, apparently knowingly, placed 17 I-beams on plaintiffs’ property for support during excavation and construction. Parts of the completed structure encroached on plaintiffs’ property as well. The Second Department noted that, in reviewing a bench trial, the appellate court can make its own judgments about the credibility of witnesses (the appraisers in this case):
The measure of damages for a continuing trespass upon real property or permanent injury to property is the “loss of market value, or the cost of restoration”… . …
… The Supreme Court’s determination that the plaintiffs’ property had “zero” value as a result of the subject encroachments was not supported by the weight of the evidence … . Nevertheless, the encroachments of the 17 I-beams, which intruded less than one foot over the plaintiffs’ property line but extended approximately 25 feet below the ground, were significant … . …
The plaintiffs are also entitled to an award of punitive damages. “A party seeking to recover punitive damages for trespass on real property has the burden of proving that the trespasser acted with actual malice involving intentional wrongdoing, or that such conduct amounted to a wanton, willful, or reckless disregard of the party’s right of possession” … . Here, the record demonstrates that the architectural plans for the development of the defendants’ property provided that the I-beams were to be installed on the plaintiffs’ property. The record also shows that the I-beams were installed solely to provide support or shoring during excavation of the defendants’ property, and that they could have been, but were not, removed during a subsequent phase of the construction despite a timely demand by the plaintiffs for such removal. …
Contrary to the defendants’ contention, the weight of the evidence supports the Supreme Court’s determination that the plaintiffs were entitled to a permanent injunction prohibiting them from maintaining encroachments that projected over the plaintiffs’ property and directing them to remove the roof cap and the brick facade trim that were projecting into the plaintiffs’ air space. “An invasion of another’s . . . airspace need not be more than de minimis in order to constitute a trespass” … , and, on this record, the balance of the equities favors the imposition of the limited injunctive relief granted by the court … . Arcamone-Makinano v Britton Prop., Inc., 2017 NY Slip Op 08650, Second Dept 12-13-17
REAL PROPERTY LAW (TRESPASS, PLAINTIFFS ENTITLED TO DAMAGES FOR REDUCED PROPERTY VALUE, PUNITIVE DAMAGES, AND INJUNCTIVE RELIEF IN THIS TRESPASS BY ENCROACHMENT ACTION, APPELLATE COURT CAN MAKE ITS OWN CREDIBILITY ASSESSMENTS IN THE APPEAL OF A BENCH TRIAL (SECOND DEPT))/APPEALS (BENCH TRIALS, APPELLATE COURT CAN MAKE ITS OWN CREDIBILITY ASSESSMENTS IN THE APPEAL OF A BENCH TRIAL (SECOND DEPT)))/TRESPASS (PLAINTIFFS ENTITLED TO DAMAGES FOR REDUCED PROPERTY VALUE, PUNITIVE DAMAGES, AND INJUNCTIVE RELIEF IN THIS TRESPASS BY ENCROACHMENT ACTION, APPELLATE COURT CAN MAKE ITS OWN CREDIBILITY ASSESSMENTS IN THE APPEAL OF A BENCH TRIAL (SECOND DEPT))/DAMAGES (TRESPASS, PLAINTIFFS ENTITLED TO DAMAGES FOR REDUCED PROPERTY VALUE, PUNITIVE DAMAGES, AND INJUNCTIVE RELIEF IN THIS TRESPASS BY ENCROACHMENT ACTION, APPELLATE COURT CAN MAKE ITS OWN CREDIBILITY ASSESSMENTS IN THE APPEAL OF A BENCH TRIAL (SECOND DEPT))/ENCROACHMENT (REAL PROPERTY LAW, TRESPASS, PLAINTIFFS ENTITLED TO DAMAGES FOR REDUCED PROPERTY VALUE, PUNITIVE DAMAGES, AND INJUNCTIVE RELIEF IN THIS TRESPASS BY ENCROACHMENT ACTION, APPELLATE COURT CAN MAKE ITS OWN CREDIBILITY ASSESSMENTS IN THE APPEAL OF A BENCH TRIAL (SECOND DEPT))