You are here: / Trespass
, , , ,

HERE THE “PRIMARY JURISDICTION DOCTRINE” DID NOT APPLY TO REQUIRE A STAY TO ALLOW THE PUBLIC SERVICE COMMISSION (PSC) TO DETERMINE WHETHER “STRAY VOLTAGE” WAS CAUSING INJURY TO PLAINTIFF’S CATTLE AND, IF SO, HOW BEST TO MITIGATE OR REMEDIATE; THE PSC HAS NO SPECIAL EXPERTISE REGARDING THE EFFECTS OF STRAY VOLTAGE ON CATTLE; THE ISSUES ARE BEST HANDLED BY A COURT, DESPITE THE COMPETING EXPERT OPINIONS (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry, determined the “primary jurisdiction doctrine” did not require that the civil action be stayed to allow the Public Service Commission (PSC) to determine whether “stray voltage” was harming plaintiff’s cattle and, if so, how the problem can be mitigated or remediated. Plaintiff, a cattle farmer, sued defendant electric company (which services the farm) alleging that “stray voltage” has caused “behavioral changes [in the cattle], decreased milk production, fertility issues and other health problems.” The Third Department held that the Public Service Commission was not better suited to deal with the issues presented by “stray voltage” than the court:

Assuming, without deciding, that the regulatory scheme is an appropriate means to address some of the issues underlying these tort claims … , compliance with regulatory standards is not dispositive as to due care … . Upon a stay and referral, the PSC [Public Service Commission] would have only the authority to determine whether defendant is presently operating in compliance with its administrative standards, which set forth minimum, generalized safety requirements. As PSC asserts and as evidenced by the opinions and reports of plaintiffs’ experts, the duty of care with respect to stray voltage on dairy farms may be quite different from this regulatory floor. The PSC also admittedly has no expertise in the impact of stray voltage on cattle and has advised that it would be necessary to seek out the opinion(s) of its own experts if tasked with evaluating whether any stray voltage here is “harmful” or merits mitigation beyond the aforementioned standards. * * *

As plaintiffs argue, the claims at issue, which do not arise from the PSC’s rules, regulations or policies, are common-law tort claims, requiring determinations as to familiar concepts such as duty and causation, and are inherently judicial … . As with other complicated areas of tort, the necessary expertise is initially supplied by the parties’ experts. To the extent that the divergence between those experts on scientific principles may necessitate additional guidance, Supreme Court possesses the authority to utilize a referee or court-appointed neutral expert to aid in the review of complex litigation where appropriate (see CPLR 4001, 4212 …). In sum, although the PSC’s opinion as to the existence, origin or degree of stray voltage may be informative, resolution of plaintiffs’ claims do not first require resolution of issues placed within the agency’s special competence. Frasier v Niagara Mohawk Power Corp., 2026 NY Slip Op 01110, Third Dept 2-26-26

Practice Point: Consult this opinion for insight into when the “primary jurisdiction doctrine” should be applied to stay a court proceeding to allow an agency to investigate and offer guidance on the underlying issues. Here the Third Department held that the Public Service Commission did not have expertise on the issues underlying the trial, so the “primary jurisdiction doctrine” did not require that the civil action be stayed pending a PSC investigation.

 

, ,

PLAINTIFFS’ ALLEGATION THAT THE WATER MAIN ON DEFENDANTS’ NEIGHBORING PROPERTY BROKE CAUSING WATER TO ENTER PLAINTIFFS’ BASEMENT STATED A NEGLIGENCE CAUSE OF ACTION UNDER THE RES-IPSA-LOQUITUR THEORY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the allegation that defendants’ water main broke causing water to enter plaintiffs’ basement supported a negligence action based on the res-ipsa-loquitur theory. The trespass and private nuisance causes of action should have been dismissed because there was no evidence of defendants’ intentional conduct:

… [D]efendants failed to establish their prima facie entitlement to judgment as a matter of law on so much of the cause of action alleging negligence as was based on the doctrine of res ipsa loquitur. “For the doctrine of res ipsa loquitur to apply, a plaintiff must establish three conditions: ‘[f]irst, the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff'” … . “The doctrine has been applied to water main breaks and this type of event has frequently been cited as a typical example of a case where the doctrine is commonly applicable” … . … Because the defendants did not establish their prima facie entitlement to judgment as a matter of law on so much of the cause of action alleging negligence as was based on the doctrine of res ipsa loquitur, the burden did not shift to the plaintiffs to raise a triable issue of fact in that regard … . Huang v Fort Greene Partnership Homes Condominium, 2024 NY Slip Op 03471, Second Dept 6-26-24

Practice Point: A water main break on defendant’s property causing water to enter the neighboring plaintiff’s basement states a negligence cause of action under the res-ipsa-loquitur theory.

 

, ,

TRESPASS BY PERMANENT PHYSICAL ENCROACHMENT (PLUMBING PIPES) IS NOT SUBJECT TO THE SAME STATUTE OF LIMITATIONS ANALYSIS AS TRESPASS BY THE ARTIFICIAL DIVERSION OF WATER; TRESPASS BY PERMANENT PHYSICAL ENCROACHMENT IS A CONTINUING TRESPASS UNTIL THE EXPIRATION OF THE TIME PERIOD FOR ADVERSE POSSESSION OR AN EASEMENT BY PRESCRIPTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the trespass cause of action should not have been dismissed as time-barred. A trespass claim based upon a permanent physical encroachment (here plumbing pipes connected to a septic system) is a continuing trespass which gives rise to successive trespass causes of action until the expiration of the time period for an easement by prescription or adverse possession:

… [P]laintiff’s claim for trespass seeking monetary damages should not be analyzed for statute of limitations purposes in the same way as a claim for the artificial diversion of water onto an adjoining property … , inasmuch as plaintiff’s trespass claim is based upon a permanent physical encroachment, i.e., the underground plumbing that defendants installed on plaintiff’s property. “[The] encroaching structure is a continuing trespass [that] gives rise to successive causes of action, except where barred by acquisition of title or an easement by operation of law” … . ” ‘Thus, for purposes of the statute of limitations, suits will only be time-barred by the expiration of such time as would create an easement by prescription or change of title by operation of law,’ [namely], by adverse possession” … . Inasmuch as the complaint, which was filed on July 23, 2021, alleges that defendants’ “plumbing material” was unlawfully installed on plaintiff’s property in 2014, plaintiff’s claim for damages here is not barred by the statute of limitations (see RPAPL 501 [2]). Kramer v Kleiber, 2024 NY Slip Op 01387, Fourth Dept 3-15-24

Practice Point: Trespass by artificial diversion of water is not subject to the same statute of limitations analysis as trespass by a permanent physical encroachment (plumbing pipes in this case). Trespass by permanent physical encroachment is a continuing trespass until the expiration of the time period required for adverse possession or an easement by prescription.

 

,

PLAINTIFF AND DEFENDANTS ARE NEIGHBORS; PRIVATE NUISANCE CAUSES OF ACTION BASED UPON DEFENDANTS’ YEARLY FIREWORKS DISPLAYS AND EXCESSIVE NOISE FROM POOL EQUIPMENT SHOULD NOT HAVE BEEN DISMISSED; A TRESPASS CAUSE OF ACTION BASED UPON DEBRIS FROM THE FIREWORKS FALLING ON PLAINTIFF’S PROPERTY SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined certain causes of action for private nuisance and trespass should not have been dismissed. Plaintiff and defendants are neighbors. The private nuisance causes of action based upon defendant’s fireworks displays every year and excessive noise from defendants’ pool equipment should not have been dismissed. In addition, the trespass action based upon debris falling on plaintiff’s property from the fireworks should not have been dismissed:

“The elements of a private nuisance cause of action are: (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act” … . “Not every annoyance will constitute a nuisance. Nuisance imports a continuous invasion of rights—a pattern of continuity or recurrence of objectionable conduct” … . “Except for the issue of whether the plaintiff has the requisite property interest, each of the other elements is a question for the jury, unless the evidence is undisputed” … * * *

“The elements of a cause of action sounding in trespass are an intentional entry onto the land of another without justification or permission, or a refusal to leave after permission has been granted but thereafter withdrawn” … . “An invasion of another’s property or airspace need not be more than de minimis in order to constitute a trespass” … . “Generally, intangible intrusions, such as by noise, odor, or light alone, are treated as nuisances, not trespass because they interfere with nearby property owners’ use and enjoyment of their land, not with their exclusive possession of it” … . Del Vecchio v Gangi, 2024 NY Slip Op 01292, Second Dept 3-13-24

Practice Point: The elements of private nuisance and trespass explained in the context of allegations by one neighbor against another concerning fireworks displays and excessive noise from pool equipment.

 

, , ,

PLAINTIFF ALLEGED CONSTRUCTION WORK ON DEFENDANT’S PROPERTY CAUSED WATER TO ENCROACH ON PLAINTIFF’S PROPERTY; THE NEGLIGENCE ACTION WAS TIME-BARRED BECAUSE THE CONSTRUCTION WORK WAS DONE MORE THAN THREE YEARS BEFORE THE ACTION WAS FILED; THE RELATED NUISANCE AND TRESPASS ACTIONS WERE NOT TIME-BARRED BECAUSE THEY MAY CONSTITUTE “CONTINUING WRONGS” (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the negligence cause of action was time-barred but the related nuisance and trespass actions constituted “continuing wrongs” and therefore were not time-barred. Plaintiff alleged defendant did construction work on defendant’s property which caused water to encroach on plaintiff’s property. Because the construction work was done more than three years before the action was filed, the negligence action was not timely:

The defendant demonstrated, prima facie, that the negligence cause of action was barred under the applicable three-year statute of limitations (see CPLR 214[4]) by submitting evidence that the allegedly negligent construction work performed on its property occurred in or around June 2012, more than four years prior to the commencement of this action … .

… Here, the acts of continuous nuisance and trespass alleged in the amended complaint may give rise to successive causes of action pursuant to the continuous wrong doctrine … . Jefferson v New Life Tabernacle, Inc., 2024 NY Slip Op 01295, Second Dept 3-13-24

Practice Point: Here construction work on defendant’s land was alleged to have caused water to encroach on plaintiff’s property. The negligence action accrued when the construction work was done and was time-barred. But the related nuisance and trespass actions may constitute “continuing wrongs” which were not time-barred.

 

, ,

PLAINTIFFS ALLEGED THE TOWN NEGLIGENTLY MAINTAINED A SEWER MAIN CAUSING SEWAGE TO BACKFLOW INTO PLAINTIFFS’ HOME; AN INTENTIONAL ENTRY IS ONE OF THE ELEMENTS OF TRESPASS; THEREFORE THE TRESPASS CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the complaint which alleged the town negligently failed to maintain a sewer main causing sewage to backflow into plaintiffs’ home did not state a cause of action for trespass, which requires an intentional act:

Among other elements, a claim for trespass requires “an intentional entry” … . Intent, in this context, “is defined as intending the act which produces the unlawful intrusion, where the intrusion is an immediate or inevitable consequence of that act” … . Here, accepting the allegations in the amended complaint as true … , we conclude that the amended complaint does not state a cause of action for trespass inasmuch as it failed to allege an intentional entry onto plaintiffs’ property … .  Drake v Village of Lima, 2023 NY Slip Op 05833, Fourth Dept 11-17-23

Practice Point: Here the trespass cause of action was based upon the backflow of sewage into plaintiffs’ home allegedly caused by the negligent maintenance of a sewer main. Trespass requires an “Intentional entry” which was not alleged here.

 

, , ,

DEFENDANT DID NOT PROVE THE EXISTENCE OF A PRESCRIPTIVE EASEMENT OVER PLAINTIFF’S LAND; PLAINTIFF DID NOT PROVE THE DAMAGES ELEMENT OF TRESPASS (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the requirements for a prescriptive easement over plaintiff’s property were not met and plaintiff did not prove the damages element of the trespass action. Plaintiff, however, was entitled to nominal damages for trespass:

… [O]ur independent review of the trial evidence reflects that defendant did not establish that the adverse use of the road continued for the requisite 10-year period. It follows that defendant’s counterclaim for a prescriptive easement must be dismissed and that, in the absence of that easement, [defendant] committed a trespass when he entered upon plaintiff’s property in 2004 … . * * *

… [P]laintiff failed to meet her burden of proving “[t]he lesser of the diminution in value of the property or the cost to repair” that would be the ordinary measure of damages for a trespass … or, for that matter, the loss of a specific number of trees for purposes of RPAPL 861 … . She was accordingly not entitled to an award of actual damages. Nevertheless, because “nominal damages can be presumed in an action for trespass to real property,” dismissal of her trespass claim was not warranted upon that basis … . Mastbeth v Shiel, 2023 NY Slip Op 03895, Third Dept 7-20-23

Practice Point: Here defendant did not prove 10 years of hostile use of plaintiff’s property and therefore did not demonstrate a prescriptive easement. Plaintiff did not prove the damages element of trespass and therefore was entitled only to nominal damages.

 

,

A CON EDISION TRANSFORMER MINI PAD WHICH ENCROACHED SIX INCHES ONTO PLAINTIFFS’ PROPERTY WAS A TRESPASS ENTITLING PLAINTIFFS TO NOMINAL DAMAGES; THE STICKER ON THE TRANSFORMER WARNING TO STAY THREE FEET AWAY FROM THE TRANSFORMER WAS A NUISANCE, AN INTANGIBLE INTRUSION, NOT A TRESPASS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the installation of a transformer mini pad by Con Edison which encroached six inches onto plaintiffs’ property was a trespass and defendant was liable for nominal damages of $1. The sticker on the mini pad warning people to stay three feet away was not a trespass. Rather the warning was an intangible intrusion constituting a nuisance:

 “‘[A] trespass claim represents an injury to the right of possession'” … . “[C]ourts have precluded trespass claims where the entry or intrusion was intangible, such as the occurrence of vibrations, shading of a plaintiff’s property, or a permeating odor or vapors of gasoline” … . “Generally, intangible intrusions, such as by noise, odor, or light alone, are treated as nuisances, not trespass [because] they interfere with nearby property owners’ use and enjoyment of their land, not with their exclusive possession of it”… .

“[N]ominal damages are presumed from a trespass even where the property owner has suffered no actual injury to his or her possessory interest” … . “Nominal damages are defined as a trifling sum awarded to a plaintiff in an action where there is no substantial loss or injury to be compensated, but still the law recognizes a technical invasion of his [or her] rights or a breach of the defendant’s duty” … . “These are formal damages as distinguished from real or substantial ones” … . Shrage v Con Edison Co., 2023 NY Slip Op 02694, Second Dept 5-17-23

Practice Point: A Con Edison transformer which encroached six inches onto plaintiffs’ land was a trespass entitled plaintiffs to nominal damages.

Practice Point: The sticker on the transformer warning to stay three feet away was a nuisance, an intangible intrusion, not a trespass.

 

,

THERE IS A QUESTION OF FACT WHETHER A PRIOR OWNER OF DEFENDANT’S PROPERTY WAS AWARE OF PLAINTIFF’S INSTALLATION OF A SEPTIC SYSTEM ON DEFENDANT’S PROPERTY GIVING RISE TO A PRESCRIPTIVE EASEMENT (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined there was a question of fact whether plaintiff was entitled to a prescriptive easement with respect to a septic system which encroached on defendant’s property:

Plaintiff represents in her complaint that the septic system was installed “[a]t least as early as the 1920s.” The septic system was ostensibly concealed until 1997, when plaintiff replaced part of the tank. Moreover, a June 2000 letter from defendants’ father, the prior owner of the property, to his attorney indicates that he was aware of a septic tank that had been installed too close to the well on plaintiff’s land … . Although the record is sparse on information concerning plaintiff’s septic tank, the first indication that defendants sought any information from plaintiff concerning permission for the installation of the septic tank came in September 2018. In this respect, there is evidence suggesting a triable issue of fact as to whether plaintiff can establish that the septic system was installed with defendants’ predecessors’ knowledge and hostile to their interests. Accordingly, we find that defendants are not entitled to judgment as a matter of law as to whether plaintiff can establish her cause of action for a prescriptive easement in relation to the presence of the septic tank … which will ultimately implicate whether or not the tank constitutes a trespass … . Sasscer v Vesey, 2022 NY Slip Op 07286, Third Dept 12-22-22

Practice Point: Here there was a question of fact whether the prior owner of defendant’s property was aware plaintiff’s installation of a septic system encroached on defendant’s land, giving rise to a prescriptive easement.

 

, , , ,

NO NOTICE OF CLAIM WAS REQUIRED IN THIS NUISANCE, TRESPASS AND INVERSE TAKING ACTION AGAINST A VILLAGE BECAUSE MONEY DAMAGES WERE INCIDENTAL TO THE DEMAND FOR INJUNCTIVE RELIEF (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a General Municipal Law notice of claim was not required in this action for nuisance, trespass, inverse taking and injunctive relief against a village. The village had installed drainage pipes in the roadway near plaintiff’s property and then repaved the road. Plaintiff alleged water runoff from the roadway flooded his property caused the foundation to collapse. Because the action was essentially for money. No notice of claim was necessary because the money damages were deemed incidental to the demand for injunctive relief. The court noted that a trespass and a taking may be pled in the alternative:

“[I]t is well settled that a notice of claim is not required for an action brought in equity against a municipality where the demand for money damages is incidental and subordinate to the requested injunctive relief” … . Viewing the amended complaint in the light most favorable to plaintiff … , we conclude that the four remaining causes of action alleged continuing harm and primarily sought equitable relief … .

… “[T]he coincidental character of the money damages sought is ‘truly ancillary to an injunction suit, i.e., there is a continuing wrong presenting a genuine case for the exercise of the equitable powers of the court’ ” … . …

Although “[a]n entry cannot be both a trespass and a taking” … , the issue here is the sufficiency of the pleading, and plaintiff sufficiently pleaded both causes of action, albeit in the alternative. Friscia v Village of Geneseo, 2021 NY Slip Op 04793, Fourth Dept 8-26-21

 

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy