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ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT).

The Second Department determined Supreme Court properly found that cladding and a drip edge plaintiff added to a party wall constituted a trespass. But Supreme Court should not have granted summary judgment on the issue whether defendant was entitled to an injunction directing plaintiffs to remove the cladding and drip edge:

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… [T]he Supreme Court erred in granting summary judgment to the defendant on the issue of whether it was entitled to an injunction directing the plaintiffs to remove the cladding and drip edge. RPAPL 871(1) provides that an “action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land. Nothing herein contained shall be construed as limiting the power of the court in such an action to award damages in an appropriate case in lieu of an injunction or to render such other judgment as the facts may justify.” In order to obtain injunctive relief pursuant to RPAPL 871(1), a party is “required to demonstrate not only the existence of [an] encroachment, but that the benefit to be gained by compelling its removal would outweigh the harm that would result to [the encroaching party] from granting such relief” … . Here, the defendant failed to demonstrate the absence of any triable issues of fact concerning whether the balance of equities weighed in its favor … . Kimball v Bay Ridge United Methodist Church, 2018 NY Slip Op 00417, Second Dept 1-24-18

REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (TRESPASS, PARTY WALL, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/TRESPASS (PARTY WALL, ENCROACHMENT,  ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/ENCROACHMENT (PARTY WALL, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/PARTY WALL (TRESPASS, ENCROACHMENT, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/ENCROACHMENT (PARTY WALL, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/INJUNCTION (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, PARTY WALL, ENCROACHMENT, TRESPASS, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))

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THE STATE HIGHWAY LAW MAY HAVE IMPOSED A DUTY ON THE TOWN TO MAINTAIN THE SIDEWALK IN THIS SLIP AND FALL CASE; IN ADDITION, THE TOWN DID NOT DEMONSTRATE IT DID NOT HAVE WRITTEN NOTICE OF THE ALLEGED DEFECT AND DID NOT DEMONSTRATE THE DEFECT WAS TRIVIAL; THE TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
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