1992 THIRD REALTY LLC v. THIRD AVE NY REALTY LLC NYC LLC (2025)

The following e-filed documents, listed by NYSCEF document number (Motion 003) 26, 27, 28, 29, 30, 31, 32, 33, 51, 52, 53, 54, 55, 56, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71 were read on this motion to DISMISS.

Upon the foregoing documents, plaintiff's motion to dismiss defendant Third Ave NY Realty LLC's counterclaims—for trespass, nuisance, and negligence—and its eighth, ninth, and tenth affirmative defenses is granted, in part, as set forth below.

FACTUAL BACKGROUND

Plaintiff 1992 Third Realty LLC is the owner of 1992 Third Avenue, a nine-story building in Manhattan (the “Building”). Defendant Third Ave NY Realty LLC (“Third Ave”) owns the adjacent property at 185 East 109th Street, on which it is constructing a new building (the “Project”).

As pertinent here, plaintiff alleges that around March 2023, defendant City Builders—Third Ave's general contractor—began excavation and foundation work on the Project, including driving piles into the ground, which led to ground water permeating up into the construction site. Plaintiff alleges that in “dewatering” the Construction Site to remove the ground water—without the required New York City Department of Buildings (“DOB”) or Department of Environmental Protection permits—large quantities of “fine soils” were flushed from under the Building into the street, which caused cracks and damage to the Building's structure and undermined the Building, causing it to shift toward defendant's property. As a result, according to plaintiff, DOB issued a stop work order for defendants’ Project. Work was stopped from approximately April 2023 to October 2023. City Builders resumed the pile driving in November 2023, which again resulted in water permeating through the piles and into defendants’ construction site.

Based on the foregoing, plaintiff commenced this action asserting claims sounding in: (1) strict liability or, alternatively, negligence, based upon defendants’ alleged breaches of Title 33 of the New York City Building Code in their construction and demolition work; (2) breach of contract against Third Ave based upon its alleged breaches of a license agreement between plaintiff and Third Ave's predecessor-in-interest; (3) trespass against Third Ave based on its alleged entry onto 1992's property for inspection as well as the removal of soil under the Building caused by Third Ave's Project; and (4) private nuisance (NYSCEF Doc. No. 1 [Compl]).

In its Answer, Third Avenue largely denies or otherwise objects to plaintiff's factual allegations and sets out its own factual recitation alleging, as pertinent here, that engineering firms retained by plaintiff and Third Ave have each concluded that the Building was negligently designed and constructed in violation of the Building Code and that its resulting structural instability has forced Third Ave to stop work on the Project. Third Ave's Answer also references a March 2024 report by its engineering firm Thornton Tomasetti which asserted that the Building “trespasses over the property line” onto Third Ave's property.

Based on the foregoing, Third Ave asserts counterclaims for: (1) trespass; (2) negligence; and (3) nuisance. Third Ave Answer also includes, as relevant here, affirmative defenses that any damage to plaintiff was caused in whole or part by the “affirmative wrongdoing, negligence, or other culpable conduct” of plaintiff or City Builders and that plaintiff's Building encroaches on its property.

Plaintiff now moves to dismiss Third Ave's counterclaims and these three affirmative defenses. Plaintiff argues that no trespass claim lies because Third Ave fails to allege an intentional invasion of its land and, in any event, this claim is rebutted by a survey of the property, as well as photographs and optical monitoring data. As to Third Ave's negligence claim, plaintiff argues that Third Ave may not recover for economic loss and has failed to allege facts to establish any causal connection between the design and construction of the Building and the DOB's stop work order—noting that Third Ave's Answer states that the stop work order was issued based upon plaintiff's representation that foundation and soil work at the Project caused the Building to shift—or its damages. Plaintiff argues that Third Ave has not stated a claim for nuisance because it fails to allege any continuous and intentional conduct by plaintiff that interfered with defendant's property and should be dismissed as duplicative of its trespass claim. Finally, plaintiff asserts that Third Ave's eighth and ninth affirmative defenses should be dismissed because comparative or contributory negligence are not defenses to its first cause of action, for strict liability pursuant to Building Code § 3309.4, and that Third Ave's tenth affirmative defense should be dismissed for the same reasons as its trespass counterclaim.

In opposition, Third Ave maintains that it has sufficiently pled claims for trespass and private nuisance by citing its engineering firm's conclusion that the Building was negligently designed and encroaches on its property. It asserts that the optical monitoring data submitted by plaintiff “falls well short” of proving that Third Ave NY's construction caused the Building to move onto Third Ave's property and, in any event, does not rebut Third Ave's claim that the Building has encroached on its property since its construction. Finally, Third Ave argues that it has stated a claim for nuisance, including the necessary “pattern of continuity or recurrence of objectionable conduct,” with allegations that plaintiff has maintained the Building in a substandard condition and failed to correct the Building's encroachment onto Third Ave's property.

In reply, plaintiff attaches the Preconstruction Survey and Stakeout Survey referenced in the Thornton Tomasetti engineering report submitted by Third Ave and asserts that these surveys establish that the Building does not cross into Third Ave's property, mandating the dismissal of Third Ave's trespass counterclaim.

DISCUSSION

In addressing a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading is to be afforded a liberal construction and the court should accept as true the facts alleged in the complaint, accord the pleading the benefit of every reasonable inference, and only determine whether the facts, as alleged, fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83 [1994]).

In the context of a motion to dismiss under CPLR 3211(a)(7), “[w]hen evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). (Nasca v Sgro, 130 AD3d 588, 588-589 [2d Dept 2015]).

On a motion to dismiss pursuant to CPLR 3211(a)(1), “[d]ismissal is warranted only if the documentary evidence submitted utterly refutes plaintiff's factual allegations and conclusively establishes a defense to the asserted claims as a matter of law” (Amsterdam Hosp. Group, LLC v Marshall-Alan Assoc, Inc., 120 AD3d 431, 433 [1st Dept 2014] [internal citations and quotations omitted]). “To be considered documentary” such evidence “must be unambiguous and of undisputed authenticity” (Toribio v 575 Broadway LLC, 61 Misc 3d 1224(A) [Sup Ct, NY County 2018] [internal citations and quotations omitted]).

Trespass

Plaintiff's motion to dismiss Third Ave's trespass counterclaim is denied. “The essential elements of a cause of action sounding in trespass are the intentional entry onto the land of another without justification or permission” (211-12 N. Blvd. Corp. v LIC Contr., Inc., 186 AD3d 69, 82 [2d Dept 2020]). Plaintiff's assertion that Third Ave fails to plead intentional conduct on its part ignores Third Ave's allegations that the Building, when built, encroached onto Third Ave's property and that plaintiff has failed to correct this intrusion. Plaintiff's submission, in reply, of the Preconstruction Survey and Stakeout Survey referenced by Third Ave's architect is of questionable propriety (see All State Flooring Distributors, L.P. v MD Floors, LLC, 131 AD3d 834, 836 [1st Dept 2015] [“The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds [or evidence] for the motion”]) and, in any event, is not documentary evidence appropriate for a CPLR 3211 motion (see Rahabi v Morrison, 81 AD2d 434, 442 [2d Dept 1981]). Even assuming that these surveys constituted documentary evidence, they still would not “conclusively establish[ ] a defense to the asserted claims as a matter of law” (Residential Bd. of Managers of Platinum v 46th St. Dev., LLC, 154 AD3d 422, 423 [1st Dept 2017] [internal citations omitted]) because “a survey alone, without an accompanying affidavit from the surveyor, does not constitute competent evidence of the location of property lines” (70 Pinehurst Ave. LLC v RPN Mgt. Co., Inc., 123 AD3d 621, 621 [1st Dept 2014] [internal citations omitted]).

Negligence

Plaintiff's motion to dismiss Third Ave's negligence counterclaim is also denied. To maintain a cause of action in negligence, “a plaintiff must [allege] (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom” (Pasternack v Lab's Corp. of Am. Holdings, 27 NY3d 817, 825 [2016]).

It is well settled that “a landowner who engages in activities that may cause injury to persons on adjoining premises owes those persons a duty to take reasonable precautions to avoid injuring them” (532 Madison Ave. Gourmet Foods, Inc. v Finlandia Ctr., Inc., 96 NY2d 280, 290 [2001] [internal citations omitted]). Plaintiff's position, that this duty is limited to personal injury or property damage, is incorrect. In the Court of Appeals’ decision cited by plaintiff, 532 Madison Avenue Gourmet Foods, Inc. v Finlandia Center., Inc., et al., the Court concluded that various businesses which had suffered financial losses from a street closure necessitated by the partial collapse of defendant's building had no negligence claim because defendant, under the circumstances, owed a duty only to those who had suffered personal injury or property damage as a result of the collapse “to avoid exposing defendants to unlimited liability to an indeterminate class of persons conceivably injured by any negligence in a defendant's act” (532 Madison Ave. Gourmet Foods, Inc. v Finlandia Ctr., Inc., 96 NY2d 280, 289 [2001]). Subsequent Court of Appeals’ jurisprudence indicates that this limitation does not apply to claims, such as this one, under Administrative Code § 27-1031(b)(1) (the predecessor to Building Code § 3309.4) (see Yenem Corp. v 281 Broadway Holdings, 18 NY3d 481 [2012] [tenant pizzeria granted summary judgment as to liability against owner and developer of neighboring building on claim for “economic loss” resulting from vacatur of building in which it operated due to defendants’ excavation work next door]).

Third Ave has also sufficiently alleged that plaintiff's negligent design and construction caused the Building to be unstable leading to the movement from Third Ave's construction. Plaintiff's observation that Third Ave's Answer states both that the stop work order was precipitated by the inherent structural instability of the Building and issued due to plaintiff's allegations that the foundation and soil work at the Project had caused the Building to move does not mandate the dismissal of this claim; any contradiction must be resolved in favor of the nonmovant on this motion. Finally, Third Ave has sufficiently alleged that it has been damaged by the decrease in its property's value caused by its inability to continue the Project.

Nuisance

Plaintiff's motion to dismiss Third Ave's nuisance counterclaim is also denied. The elements of private nuisance are an invasion of plaintiff's interest in the private use and enjoyment of its land which is either: “(1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities” (Copart Indus., Inc. v Consol. Edison Co. of New York, Inc., 41 NY2d 564, 569 [1977] [internal citations omitted]). “Nuisance is characterized by a pattern of continuity or recurrence of objectionable conduct” (Berenger v. 261 W. LLC, 93 AD3d 175, 182, 940 N.Y.S.2d 4 [1st Dept 2012]). The intent element of nuisance may be established by a failure to act on a defendant's part (Copart Indus., Inc. v. Consolidated Edison Co. of NY, 41 NY2d 564, 570 [1977]). Third Ave has satisfied these requirements through allegations that it has been unable to continue with the Project due to the Building's inherent instability and encroachment onto its lot.

Plaintiff's argument that this cause of action should be dismissed as duplicative of Third Ave's trespass claim is unavailing. To the extent both claims involve the Building's alleged encroachment on Third Ave's property, “[a] cause of action alleging private nuisance is distinguishable from a cause of action alleging trespass in that trespass involves the invasion of the plaintiff's interest in the exclusive possession of its land, while a private nuisance involves the invasion of the plaintiffs right to the use and enjoyment of its land” (CGM-Llnr LLC v The Sylvia Ward and PO Kim Art Gallery, 2018 NY Slip Op 31056[U], 3 [Sup Ct, NY County 2018] [internal citations omitted]).

Affirmative Defenses

Finally, plaintiff's motion is granted to the extent it seeks to dismiss Third Ave's eighth and ninth affirmative defenses as against the complaint's first cause of action, since comparative or contributory liability defenses do not apply to a claim under Building Code § 3309.4, a strict liability statute ¹ (see Yenem Corp. v 281 Broadway Holdings, 18 NY3d 481, 491 [2012]; see also Dfaweast, LLC v Friedland Properties Inc., 211 AD3d 462, 462 [1st Dept 2022]). However, to the extent the complaint also pleads a cause of action for negligence, albeit in the alternative, these affirmative defenses are not dismissed to the extent they may apply to that claim. Finally, plaintiff's motion to dismiss defendant's tenth affirmative defense is denied for the same reasons underlying the denial of its motion to dismiss Third Ave's trespass counterclaim.

Accordingly, it is

ORDERED that plaintiff's motion to dismiss Third Ave NY Realty LLC's counterclaims is denied; and it is further

ORDERED that plaintiff's motion to dismiss Third Ave NY Realty LLC's eighth, ninth, and tenth affirmative defenses is granted to the extent that the eighth and ninth affirmative defenses are dismissed with respect to plaintiff's first cause of action, and is otherwise denied; and it is further

ORDERED that plaintiff shall file a reply to Third Ave NY Realty LLC's counterclaims within thirty days of the date of this decision and order; and it is further

ORDERED that Third Ave NY Realty LLC shall serve a copy of this decision and order, with notice of entry, upon plaintiff, City Builders NYC LLC, the Clerk of the Court (60 Centre Street, Room 141B), and the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further

ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “EFiling” page on this court's website at the address www.nycourts.gov/supctmanh).

This constitutes the decision and order of the Court.

FOOTNOTES

1.   As plaintiff notes, while Third Ave asserts in opposition that it may not be liable for damage to the Building that resulted from excavation work performed before Third Ave purchased 185 East 109th Street and took over the Project, this is not asserted in either its eighth or ninth affirmative defenses.

Judy H. Kim, J.