BARRICELLA v. PAPADOPOULOS (2025)

DECISION & ORDER

In an action, inter alia, pursuant to RPAPL article 15 for a judgment declaring that a survey dated September 17, 2013, establishes the eastern boundary of the plaintiffs' property and alleging private nuisance, the plaintiffs appeal from a judgment of the Supreme Court, Richmond County (Charles M. Troia, J.), dated January, 17, 2023.  The judgment, insofar as appealed from, upon a decision of the same court dated October 18, 2022, made after a nonjury trial, is in favor of the defendants and against the plaintiffs dismissing the first and fifth causes of action.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof dismissing the first cause of action, and adding thereto a provision declaring that the survey dated September 17, 2013, does not establish the eastern boundary of the plaintiffs' property;  as so modified, the judgment is affirmed insofar as appealed from, with costs to the defendants.

The plaintiffs and the defendants own adjoining properties in Staten Island and share a common boundary located on the eastern side of the plaintiffs' property and on the western side of the defendants' property.  Prior to purchasing their property, the plaintiffs obtained a survey dated September 17, 2013, which allegedly revealed that a chain-link fence intended to delineate the common boundary between their property and the defendants' property was located entirely on the plaintiffs' property.  In or around 2015, the defendants made certain renovations to their property that allegedly caused water to flow from their property onto the plaintiffs' property whenever it rained.

In 2018, the plaintiffs commenced this action, inter alia, pursuant to RPAPL article 15 for a judgment declaring that the survey established the eastern boundary of their property and alleging that the rainwater entering their property from the defendants' property constituted a private nuisance.  After a nonjury trial, a judgment dated January 17, 2023, was entered upon a decision dated October 18, 2022, among other things, in favor of the defendants and against the plaintiffs dismissing the first and fifth causes of action.  The plaintiffs appeal.

“In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses” (Castaldi v. Syosset Cent. Sch. Dist., 203 A.D.3d 690, 692, 164 N.Y.S.3d 626 [internal quotation marks omitted];  see Baden v. Bregy, 201 A.D.3d 849, 851, 162 N.Y.S.3d 101).

“As the party seeking a declaratory judgment, the plaintiff bears the burden of demonstrating [his or her] entitlement thereto” (Nicosia v. Shultis, 239 A.D.2d 473, 473, 658 N.Y.S.2d 640;  see GJF Constr. Corp. v. Cosmopolitan Decorating Co., Inc., 35 A.D.3d 535, 535, 828 N.Y.S.2d 409).  Moreover, “[i]n an action pursuant to RPAPL article 15, the plaintiff bears the burden of demonstrating, inter alia, the boundaries of the subject property with ‘common certainty’ ” (Seaview at Amagansett, Ltd. v. Trustees of Freeholders & Commonalty of Town of E. Hampton, 191 A.D.3d 717, 720, 142 N.Y.S.3d 162, quoting RPAPL 1515[2];  see O'Brien v. Town of Huntington, 66 A.D.3d 160, 165–166, 884 N.Y.S.2d 446).

Here, notwithstanding the Supreme Court's application of an improper standard of proof with respect to the first cause of action, for a judgment declaring that the survey established the eastern boundary of the plaintiffs' property, we conclude, based upon our independent review of the record, that the plaintiffs failed to meet their burden.  The plaintiffs' evidence, including the testimony of their land surveyor, failed to demonstrate that the surveyor employed a reliable methodology or relied upon sufficient data points (see Sunnyview Farm, LLC v. Levy Leverage, LLC, 223 A.D.3d 955, 958, 202 N.Y.S.3d 797;  Mohonk Preserve, Inc. v. Ullrich, 119 A.D.3d 1130, 1131–1133, 990 N.Y.S.2d 660;  McNamara v. Lake in the Sky, 227 A.D.2d 775, 776, 641 N.Y.S.2d 921).  However, instead of dismissing the first cause of action, seeking a declaratory judgment, the court should have made a declaration in favor of the defendants (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670;  Rockland Light & Power Co. v. City of New York, 289 N.Y. 45, 51, 43 N.E.2d 803).  Accordingly, we modify the judgment so as to delete the provision thereof dismissing the first cause of action, and add thereto a provision declaring that the survey dated September 17, 2013, does not establish the eastern boundary of the plaintiffs' property.

The Supreme Court properly dismissed the fifth cause of action, alleging private nuisance.  To establish the elements of a private nuisance, “a plaintiff must establish an interference with his or her right to use and enjoy land, substantial in nature, intentional or negligent in origin, unreasonable in character, and caused by the defendant's conduct” (Banschick v. Johnson, 222 A.D.3d 608, 609, 202 N.Y.S.3d 342 [internal quotation marks omitted];  see Harris v. Miranda, 219 A.D.3d 1498, 1499, 196 N.Y.S.3d 541).  “ ‘[N]ot every annoyance will constitute a nuisance’ ” (Harris v. Miranda, 219 A.D.3d at 1499, 196 N.Y.S.3d 541, quoting Domen Holding Co. v. Aranovich, 1 N.Y.3d 117, 124, 769 N.Y.S.2d 785, 802 N.E.2d 135).  Here, the plaintiffs failed to prove, by a preponderance of the evidence, that the defendants caused the alleged condition or that the alleged condition constituted an unreasonable interference with the plaintiffs' right to use and enjoy their property (see id.;  see generally Banschick v. Johnson, 222 A.D.3d 608, 202 N.Y.S.3d 342).

Contrary to the defendants' contention, however, neither the complaint nor this appeal was without any reasonable basis in law or fact, and nothing in the record demonstrates that the plaintiff's commencement of this action was frivolous within the meaning of CPLR 8303–a (see Tsamasiros v. Jones, 232 A.D.3d 816, 819–820, 223 N.Y.S.3d 144).

IANNACCI, J.P., MILLER, WAN and LANDICINO, JJ., concur.