The Second Department, reversing Supreme Court, determined plaintiffs’ motion for leave to replead a private nuisance and trespass action should have been granted. Plaintiffs alleged defendants had negligently planted and watered on their side of plaintiffs’ retaining wall, damaging the wall:
… [T]he court improvidently exercised its discretion in denying the plaintiffs’ motion, in effect, for leave to replead … . The standard to be applied on such a motion “is consistent with the standard governing motions for leave to amend pursuant to CPLR 3025″… . In particular, such motions “should be freely granted absent prejudice or surprise to the opposing party, unless the proposed amendment is devoid of merit or palpably insufficient”… .
The proposed amended complaint alleged that the defendants had (1) engaged in “digging, excavating, grading and altering the soil, past the property line with [the] plaintiffs’ property and abutting [the plaintiffs’] property and wall,” (2) planted bushes, shrubs, and trees, and added significant amounts of mulch on the plaintiffs’ property, near the property line, and along the plaintiffs’ wall, and (3) excessively watered the location where the work was performed. The amended complaint further alleged that the “lateral load and pressure has been increased as a result of the planting of trees, bushes, shrubs and plants and the lack of drainage” so as to damage the plaintiffs’ retaining wall. The complaint alleges that this conduct was negligent, and that it constituted a private nuisance and trespass. Contrary to the defendants’ contention, these amended causes of action were neither palpably insufficient nor patently devoid of merit … , and no unfair prejudice or surprise to the defendants would arise from permitting the amendment … . Chaikin v Karipas, 2018 NY Slip Op 04525, Second Dept 6-20-18
REAL PROPERTY (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 3025 (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRESPASS (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NUISANCE (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/RETAINING WALL (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))