Lorena Volokhova, Plaintiff, v. KHANNA NAZAROVA (2026)

The following papers were used on this motion: order to show cause; affidavit in support; affidavit of emergency; affirmation in support of notification; Part 130 certification; summons; amended complaint; exhibits A- I.

Upon the foregoing papers, having heard oral argument, and due deliberation having been had, the within motion by plaintiff is determined as follows.

Background

This motion by the plaintiff, Lorena Volokhova, presents a claim that the defendants, owners of the neighboring property, have encroached on a portion of the plaintiff's property and have unauthorizedly affixed a white fence to the plaintiff's house, thus damaging it.

According to the complaint — the record evidence establishing proper service of the summons and complaint — the plaintiff is the sole owner in fee simple of the real property located at 14A Lake Avenue, Brooklyn, New York, which is Kings County Block 8796, Lot 53. Defendant Hanardi Corp. is the record owner of the adjoining property at 15A Lake Avenue, Brooklyn, New York, which is Kings County Block 8796, Lot 52. Defendant Khanna Nazarova is alleged to be the principal, owner, officer, and/or authorized representative of Defendant Hanardi Corp.

Plaintiff alleges that the defendants have encroached on a three foot-wide strip of land located between the two houses which occupy the two adjoining property lots, said strip of land being part of the property lot owned by the plaintiff and, moreover, have affixed a fence to the plaintiff's house through screws, fasteners, and other hardware, in effect establishing dominion on the aforementioned three foot-wide strip of land. Despite formal notice to Defendants demanding that they remove the fence and abate the encroachment, Defendants have refused to so. The described actions of the defendants are asserted to constitute a trespass. The defendants are in the process of selling their property, with the three-feet-wide strip of land included.

Plaintiff alleges further that the as a result of the unauthorized attachment of the fence to the plaintiff's house, openings and penetrations were created, compromising the integrity of the house's waterproofing, weatherproofing, and protective systems, allowing water intrusion and exposing the house to deterioration and further damage. Various causes of action were pleaded by the plaintiff: trespass, encroachment, declaratory judgment as to property boundary, quiet title and determine adverse claims, permanent injunction, property damage.

Movant's Contentions

By order to show cause, the plaintiff seeks relief, which is described as follows:

Declaring the disputed three-foot strip of land to be the sole property of the Plaintiff, ordering the Defendant to immediately detach the fence from my house and remove it from my property and restraining her property pending in the final determination of this action.

In her affidavit in support, the plaintiff also seeks to have the sale of 15A Lake Avenue enjoined from being sold pending the final determination of this action. Plaintiff argues that a 2004 survey of her property supports her contentions regarding the encroachment, as does a more recent one, dated March 31, 2026. Plaintiff fears that the three foot-wide strip of land may be included in the sale of 15A Lake Avenue to a third party. "Immediate court intervention is necessary to maintain the status quo," contends the plaintiff.

Opposition

No opposition was filed by the defendants.

Discussion

Although the relief sought in the order to show cause is described in the first person instead of the third person, the court applies the rule that pro se parties may be afforded a certain latitude (see Haverlin v Gottlieb, 49 Misc 3d 131[A], 2015 NY Slip Op 51750[U] [App Term, 9th & 10th Dists. 2015] [motion providently construed as one to renew]; Bank Trust Natl. Assn. v Dubrowski, 2024 WL 3312482 [Sup Ct, NY County 2024] [court will examine claim under uncited provision as well as cited one]; Matter of J.E.P. v People, 9 Misc 3d 1104[A], 2005 NY Slip Op 51397[U] [Fam Ct, Nassau County 2005] [incorrect caption and minor technical deficiencies in papers excused]). It is clear that the relief sought by the plaintiff in this motion is to declare that the subject three foot-wide strip of land is hers, that the white fence affixed to her house by the defendants be removed, and that the sale of 15A Lake Avenue not include the three foot-side strip of land plus the white fence affixed to the plaintiff's house. In effect, the plaintiff seeks a preliminary injunction.

While the plaintiff did not explicitly cite to provisions of the Real Property Actions and Proceedings Law (RPAPL), presumably due to her pro se status, it is evident that her action sounds in a cause of action of action lying under RPAPL § 871 (1), which provides: "An action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land. Nothing herein contained shall be construed as limiting the power of the court in such an action to award damages in an appropriate case in lieu of an injunction or to render such other judgment as the facts may justify."

Moreover, disputes over adjacent land may be resolved in an RPAPL article 15 action (e.g. XXXX, L.P. v 363 Prospect Place, LLP, 153 AD3d 588 [2d Dept 2017]).

The Appellate Division, Second Department, has held:

To be entitled to a preliminary injunction, a movant must establish (1) a likelihood of success on the merits, (2) irreparable injury absent granting the preliminary injunction, and (3) a balancing of the equities in the movant's favor (see 306 Rutledge, LLC v City of New York, 90 AD3d 1026, 1028 [2011]). The purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual (see Board of Mgrs. of the Britton Condominium v C.H.P.Y. Realty Assoc., 101 AD3d 917, 918 [2012]; Dixon v Malouf, 61 AD3d 630 [2009]). A movant must satisfy each requirement with "clear and convincing evidence" (Apa Sec., Inc. v Apa, 37 AD3d 502, 503 [2007]). "The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court" (Arcamone-Makinano v Britton Prop., Inc., 83 AD3d 623, 625 [2011]; see Blinds & Carpet Gallery, Inc. v E.E.M. Realty, Inc., 82 AD3d 691, 692 [2011]; Rowland v Dushin, 82 AD3d 738, 739 [2011]). (County of Suffolk v Givens, 106 AD3d 943, 944 [2d Dept 2013].)

Plaintiff has submitted compelling, clear and convincing evidence that the defendants have encroached on the plaintiff's property by occupying the three-foot wide strip of land between their two buildings which, according to property surveys, lies within the plaintiff's deeded property, and by affixing a white fence to the plaintiff's house (see Salerno v C.E. Kiff, Inc., 119 AD3d 1104, 1106 [3d Dept 2014]).

Here, the plaintiff demonstrates a likelihood of success on the merits. Two land surveys show that the fence is on her property. She faces irreparable harm to her property because the longer the fence remains the greater the damage done and, if the defendants, who are actively seeking to sell their property, go through with a sale to a third party, then the damage will be further exacerbated by drawn-out legal proceedings with a new owner, not to mention the strong potential for water damage. In balancing the equities, they lie in the plaintiff's favor as her property will continue to suffer damage whereas the defendants' property will not. It should be noted that there is a possible misrepresentation to third parties seeking to purchase the defendants' property based on photos provided to real property sales websites.

Similarly, the plaintiff demonstrates a likelihood of success on the merits with respect to the three foot-wide strip of land. Plaintiff faces irreparable injury from the encumbrance of an easement by prescription. The balance of equities favors the plaintiff with respect to this also.

"Since the preferred form of remedy for trespass and encroachment depends on the particular circumstances of a case, it should be suited to them so that the equitable relief is both realistic, and, at the same time, effective to prevent a continuing encroachment. Accordingly, the court should have afforded plaintiff equitable relief by directing removal of the offending encroachment." (Robert v Kohs, 35 AD3d 178, 179 [2d Dept 2006].) The benefit to be gained by the plaintiff in granting her relief in the form of mandating removal of the fence outweighs the harm that would result to the encroaching defendants. Monetary damages to the plaintiff for the encroachment would not provide sufficient relief to her.

CPLR 6312 (b) requires an undertaking where a preliminary injunction is granted. The Court finds that based on the evidentiary showing of the plaintiff, there are practically no damages to be incurred by the defendants should it be finally determined that the plaintiff was not entitled to an injunction. Therefore, a nominal undertaking of $2,500.00 is called for (see Boyd v Assanah, 210 AD3d 855, 856-857 [2d Dept 2022]; Sardino v Scholet Family Trust, 192 AD3d 1433 [3d Dept 2021]; Franco v 172 E Holdings LLC, 110 AD3d 636 [1st Dept 2013]).

Conclusion

It is hereby ORDERED that the plaintiff's motion is granted to the following extent:

(1) Defendants Hanardi Corp. and Khanna Nazarova are preliminarily enjoined to remove the white fence attached to the plaintiff's house, located at 14A Lake Avenue, Brooklyn, New York, which is Kings County Block 8796, Lot 53, as depicted in the attached survey marked "Appendix A," and appearing in the attached photograph marked "Appendix B."

(2) Defendants Hanardi Corp. and Khanna Nazarova are preliminarily enjoined to cease occupying the three foot-wide strip of land located between the houses assigned addresses of 14A Lake Avenue, Brooklyn, New York, which is Kings County Block 8796, Lot 53, and 15A Lake Avenue, Brooklyn, New York, which is Kings County Block 8796, Lot 52, as depicted in shaded gray on the attached survey marked "Appendix A," and to remove all property placed thereon by them.

(3) Advertising for the sale of 15A Lake Avenue, Brooklyn, New York, which is Kings County Block 8796, Lot 52, shall not convey that the property offered for sale includes the aforesaid three foot-wide strip of land or the aforesaid fence attached to 14A Lake Avenue, Brooklyn, New York, which is Kings County Block 8796, Lot 53, as depicted in the attached survey marked "Appendix A," and appearing in the attached photograph marked "Appendix B."

(4) Pursuant to CPLR 6312, the plaintiff shall give an undertaking in the amount of $2,500.00, to be deposited with the County Clerk.

(5) This order may be recorded with the City Register.

The issuance of a declaratory judgment and further permanent relief, including the award of damages, awaits a final resolution of the issues raised in this action. In any event, the defendants have not answered the amended complaint, and the plaintiff has not moved for a default judgment. Therefore, further relief beyond that set forth in the preceding paragraphs, is denied.

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Aaron D. Maslow, J.