437 WEST 36TH STREET LLC v. ZDJ 37 LLC (2025)

Order, Supreme Court, New York County (Mary V. Rosado, J.), entered on or about February 10, 2025, which, to the extent appealed from as limited by the briefs, granted defendant's motion to dismiss the causes of action for a declaratory judgment (first, second, and fifth causes of action) and for permanent injunctive relief (third and fourth causes of action), unanimously affirmed, without costs.  Order, same court and Justice, entered on or about February 10, 2025, which denied plaintiff's motion for a preliminary injunction, unanimously affirmed, without costs.

As to the causes of action for declaratory judgment, all of which sound in adverse possession, plaintiff failed to state a cause of action, as it failed to sufficiently plead that the use of the use of the property was hostile (see Estate of Becker v. Murtagh, 19 N.Y.3d 75, 81, 945 N.Y.S.2d 196, 968 N.E.2d 433 [2012];  Amalgamated Dwellings, Inc. v. Hillman Hous. Corp., 33 A.D.3d 364, 364, 822 N.Y.S.2d 499 [1st Dept. 2006]).  The mutually beneficial nature of a retaining wall abutting two properties naturally leads to a conclusion that its use is permissive as to either property owner, even if the wall is located entirely on one of the properties (see Chatsworth Realty 344 v. Hudson Waterfront Co. A, 309 A.D.2d 567, 567–568, 765 N.Y.S.2d 39 [1st Dept. 2003]).

Supreme Court correctly dismissed the causes of action for permanent injunctive relief enjoining defendant from interfering with or cantilevering over the retaining walls, and correctly denied plaintiff's motion for a preliminary and permanent injunction enjoining defendant from performing excavation or construction work along the disputed strip of land.  Plaintiff did not plead or provide evidence that it will suffer irreparable harm (see Swartz v. Swartz, 145 A.D.3d 818, 828, 44 N.Y.S.3d 452 [2d Dept. 2016];  Chernoff Diamond & Co. v. Fitzmaurice, Inc., 234 A.D.2d 200, 201, 651 N.Y.S.2d 504 [1st Dept. 1996]).  Plaintiff also does not state in the complaint that the retaining walls themselves were actually damaged during defendant's work or that defendant's workers were behaving recklessly in a way that endangered either the walls or plaintiff's property.  Moreover, plaintiff has not pleaded or demonstrated a likelihood of success on the merits of its causes of action sounding in adverse possession (see Chernoff, 234 A.D.2d at 201, 651 N.Y.S.2d 504).

We have considered the remaining contentions and find them unavailing.