MAGLIOCCO v. MKB FAMILY LLC (2021)

Order, Supreme Court, New York County (Gerald Lebovits, J.) entered July 29, 2020, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to dismiss insofar as it sought to dismiss the claims for trespass, and granted in part and denied in part defendants’ motion insofar as it sought to dismiss the causes of action for private nuisance and breach of contract, unanimously modified, on the law, to deny defendants’ motion to dismiss the cause of action for breach of contract insofar as plaintiffs alleged that defendants failed to remove the encroachments over and on plaintiffs’ premises, and otherwise affirmed, without costs.

The causes of action for trespass and private nuisance were properly dismissed.  The parties executed an agreement providing that defendants would pay the sum of $55,508.85 to satisfy “all past damages” that were caused by the renovation of defendants’ townhouse.  Therefore, since all prior damages were settled, defendants were released from claims of trespass and nuisance with respect to preagreement conduct (see Matter of Lipper Holdings v. Trident Holdings, 1 A.D.3d 170, 171, 766 N.Y.S.2d 561 [1st Dept. 2003]).  As to any postagreement conduct, plaintiffs do not argue on appeal that they are entitled to maintain the nuisance cause of action on the basis of postagreement conduct.  With regard to the trespass cause of action, defendants’ alleged postagreement conduct is based on a breach of the same duty that forms the basis of the breach of contract cause of action, and therefore is duplicative of the breach of contract cause of action (see Eden Roc, LLLP v. Marriott Intl., Inc., 116 A.D.3d 486, 487, 983 N.Y.S.2d 549 [1st Dept. 2014]).

Plaintiffs sufficiently allege that there was a binding contract requiring defendants to remove the temporary protection system erected in the rear yard of the plaintiffs’ premises and cantilevered over the premises and that defendants failed to do so (see e.g. Markov v. Katt, 176 A.D.3d 401, 401–402, 109 N.Y.S.3d 295 [1st Dept. 2019]).  The monthly license fee that the parties agreed to was based upon structures and property protections erected on defendants’ premises, and did not cover protections erected in or cantilevered over plaintiffs’ premises.  Furthermore, plaintiffs are not obliged to show that they had actually sustained damages in order to maintain their claim;  it is sufficient that the complaint contains allegations from which damages attributable to defendants’ breach might be reasonably inferred (see CAE Indus. v. KPMG Peat Marwick, 193 A.D.2d 470, 472–473, 597 N.Y.S.2d 402 [1st Dept. 1993]).