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PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT ON THEIR ADVERSE POSSESSION AND TRESPASS CAUSES OF ACTION SHOULD HAVE BEEN GRANTED; A DEFENDANT’S MISTAKEN BELIEF HE OR SHE HAD A RIGHT TO ENTER DOES NOT DEFEAT LIABILITY FOR TRESPASS (SECOND DEPT).

The Second Department, reversing Supreme Court in this adverse possession and trespass action, determined plaintiffs were entitled to summary judgment on their adverse possession and trespass actions. With regard to trespass, the court noted that liability is not defeated by a defendant’s belief he or she has a right to enter the property:

The Supreme Court also should have granted that branch of the plaintiffs’ cross motion which was, in effect, for summary judgment on the issue of liability on the trespass cause of action. To meet their prima facie burden, the plaintiffs were required to demonstrate that the defendant intentionally entered onto the land belonging to the plaintiffs without justification or permission … . “‘Liability may attach regardless of defendant’s mistaken belief that he or she had a right to enter'” … . Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the trespass cause of action by submitting the affidavit of the plaintiff Jamie Montanaro, who averred that, in December 2016, the defendant removed a portion of the retaining wall on the disputed property and built a garage which encroaches upon the disputed property … . The plaintiffs also submitted the affidavit of a land surveyor who averred that the new garage encroached upon the disputed property … . Montanaro v Rudchyk, 2020 NY Slip Op 07560, Second Dept 12-16-20

 

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