Preview
FILED: KINGS COUNTY CLERK 05/09/2022 04:23 PM INDEX NO. 507841/2022
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/09/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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CHERYL TURNER, : Index No. 507841/2022
:
Plaintiff, :
:
-against- :
:
COMMUNITY COUNSELING AND :
MEDIATION and HAYAA SNEDIKER LLC, :
:
Defendants. :
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DEFENDANT COMMUNITY COUNSELING AND MEDIATION’S
MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS
Co-Defendant Community Counseling and Mediation (“CCM”), by its attorney Loanzon
LLP, submits this memorandum of law in support of its motion to dismiss pursuant to C.P.L.R. §
3211(a)(1) and (7).
FACTS
The following facts are alleged in the Complaint: Plaintiff Cheryl Turner brings private
nuisance and trespass claims against an owner (and former owner) of a vacant lot adjacent to her
building. The vacant lot is owned by co-defendant Community Counseling and Mediation since
February 2020; prior to that, the vacant lot was owned by co-defendant Hayaa Snediker LLC. For
her First Cause of Action for private nuisance, Turner claims that the vacant lot (“Lot”) has an
irregular and non-level surface “causing water to penetrate” Turner’s building and undermine its
foundation and its integrity. Turner claims that uncontrolled vegetation growth in the Lot caused
similar damage to her building, despite the vegetation clean-up performed by CCM on the Lot in
2021. Lastly, Turner claims that the “deterioration” of the vegetation and irregular surface of the
Lot caused similar damage to her building.
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For Turner’s Second Cause of Action for trespass, she claims that CCM built a fence
between the Lot and her building which deprived her of “the use of a portion of her property
running between the Building and the Lot.” That boundary, according to Turner, is “approximately
six feet in width” from her property’s line.
Motion to Dismiss Standard
On a C.P.L.R. 3211(a) motion to dismiss, although the pleaded facts are presumed to be
true and accorded every favorable inference, allegations consisting of bare legal conclusions as
well as factual claims flatly contradicted by documentary evidence are not entitled to any such
consideration. See Biondi v. Beekman Hill House Apt. Corp., 257 A.D.2d 76, 81 (1st Dep’t 1999),
aff’d, 94 N.Y.2d 659 (2000); Gertler v. Goodgold, 107 A.D.2d 481, 485 (1st Dep’t 1985), aff’d,
66 N.Y.2d 946 (1985). While a movant must concede well-pleaded factual assertions, it does not
concede assumptions, opinion, speculations and/or conclusions of law. Spock v. Pocket Books,
Inc., 48 Misc. 2d 812, 813 (Sup. Ct. N.Y. Co. 1965). The Complaint cannot “succeed upon any
reasonable views” of the facts alleged even if they are “deemed true” and “all reasonable
inferences” are “drawn in favor” of the Plaintiff. See Davids v. State, 74 N.Y.S.3d 288, 291 (2d
Dep’t 2018); Dunleavy v. Hilton Hall Apts. Co. LLC, 14 A.D.3d 479, 480 (2d Dep’t 2005).
When the motion to dismiss is premised upon documentary evidence under C.P.L.R.
3211(a)(1), “such motion may be appropriately granted only where the documentary evidence
utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of
law.” Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002); Crepin v. Fogarty, 59
A.D.3d 837, 838 (2d Dep’t 2009).
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I. Plaintiff Fails to Sufficiently Allege a Claim for Private Nuisance.
Private nuisance is the “invasion of [an] interest in the private use and enjoyment of land.”
Copart Indus., Inc. v. Consol. Edison Co. of New York, 41 N.Y.2d 564, 569 (1977); Jobe v.
Chelsea Hotel Owner, LLC, 2020 N.Y. Slip Op. 33588, *4 (N.Y. Sup. Ct. N.Y. Co. 2020). A
plaintiff must allege: “(1) an interference substantial in nature, (2) intentional in origin, (3)
unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by
another’s conduct in acting or failure to act.” Berenger v. 261 W. LLC, 93 A.D.3d 175, 182 (1st
Dep’t 2012) (citing Copart Indus., 41 N.Y.2d at 570). “However, not every annoyance will
constitute a nuisance.” Jobe, 2020 N.Y. Slip Op. 33588, at *4. The plaintiff also must allege “a
continuous invasion of rights—a pattern of continuity or recurrence of objectionable conduct.” Id.
(emphasis added). Here, Plaintiff’s private nuisance claim fails for multiple reasons.
First, Plaintiff fails to satisfy the first element of private nuisance because she does not
allege that the “condition, vegetation, and deterioration of the Lot” interfered substantially with
her Building. She generally alleges that the nuisance is “undermining the structural integrity” of
her property and is “requiring significant repair.” She does not allege how a vacant lot – without
any structures, unexcavated, and unoccupied – affects the integrity of her building, or allege what
repairs were required and what she paid for them, if any.
Second, Turner does not allege that CCM intentionally allowed water to flow from the Lot
to the Building. She does not allege that CCM was reckless or negligent in allowing water to flow
from the Lot to the Building. There is no source of water in the Lot. The water that Turner
complains about is presumably rainwater (she calls it “natural and artificial water”).
Lastly, the Complaint failed to allege that the nuisance was recurring. “A cause of action
to recover for the creation of a private nuisance must be supported by evidence sufficient to
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demonstrate a “recurrence of objectionable conduct.” Domen Holding Co. v. Aranovich, 1 N.Y.3d
117, 114 (2003), quoting Frank v Park Summit Realty Corp., 175 A.D.2d 33, 34 (1st Dept. 1991),
mod. on other grounds, 79 N.Y.2d 789 (1991); see Duane Reade v Reva Holding Corp., 30 A.D.3d
229, 237 (1st Dep’t 2006). Here, Plaintiff does not allege that the nuisance – which she defined as
“condition, vegetation, and deterioration” – is recurring. As to condition, Plaintiff alleges that the
Lot is not leveled and has irregular surface, but she does not say how the irregular surface affect
her property in recurring manner. With respect to her claim for nuisance based on “growth of
vegetation,” Turner conceded that CCM cleaned the vegetation in 2021, which would establish
that the vegetation nuisance is not recurring. As regards deterioration, she claimed that the Lot
received “natural and artificial water” and “penetrated” her building, but there is no allegation that
such event is recurring. When it rains, water tends to accumulate or flow from one property to the
next, but that fact does not support a claim for nuisance.
II. Plaintiff’s Claim for Trespass is Contradicted by Documentary Evidence.
Plaintiff’s Second Cause of Action, for trespass, must be dismissed because Plaintiff has
alleged no tangible entry into the Building. It is well-settled that “[a] trespass claim represents an
injury to the right of possession, and the elements of a trespass cause of action are an intentional
entry onto the land of another without permission.” C&B Enters. USA, LLC v. Koegel, 136 A.D.3d
957, 959 (2d Dep’t 2016) (quoting Ivory v. IBM, 116 A.D.3d 121, 129 (3d Dep’t 2014)). However,
“[c]ourts have precluded trespass claims where the entry or intrusion was intangible.” C&B
Enters., id.
Here, Turner alleged that she owns a 6-foot wide piece of land that is outside of her property
line and is between her Building and the Lot. She appears to be claiming an additional piece of
property outside the Building or an easement that runs between the Building and the Lot. However,
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Turner’s claim for trespass is contradicted by the deed to the land occupied by the Building. The
deed shows that the plaintiff does not own any property or easement that is 6-foot wide running
between the Building and the Lot.
A copy of the deed to Plaintiff’s property at 743 Snediker Avenue, Brooklyn, New York
11207 – with designation Block 3874, Lot 4 – is attached as Exhibit B to the accompanying
Affirmation of Tristan C. Loanzon, sworn to on May 9, 2022 (“Loanzon Affirmation”). In the
deed, the description of Plaintiff’s land (Lot 4) does not mention any easement that was reserved
to Lot 4, and instead describes a four-foot easement in the property to the north of Plaintiff’s:
TOGETHER with an easement over the most southerly 4 feet of the premises
immediately adjoining the above described premises on the north for light, air and
access and SUBJECT to an easement over the most northerly 4 feet of the premises
herein described for light, air and access.
Exhibit B (emphasis added). CCM’s property is to the south of Plaintiff’s. To further illustrate the
point, the tax map from ACRIS shows the relative positions of Plaintiff’s and CCM’s respective
properties. See Loanzon Affirmation, Exhibit C. It is evident from the tax map that the property
to the north (Lot 5) of Plaintiff’s property (Lot 4) is not CCM’s property which is in southern
portion and is located in Lot 1. Therefore, the easement described in Plaintiff’s deed is with the
neighboring Lot 5, and not Lot 1 (CCM’s property).
The court may take judicial notice of the deed and description obtained from ACRIS and
consider them on a motion to dismiss. See 766 Miller Lend LLC v. Flamingo Funding Inc., 2015
N.Y. Slip Op. 31220, *4 n.4 (N.Y. Sup. Ct. Kings Co. 2015) (“The court, in its discretion, takes
judicial notice of the publically recorded Mortgage, mortgage assignment, assumption agreement,
modification agreement, security agreements and deed regarding the Property and identified herein
that are maintained on the New York City Department of Finance City Register’s Automated City
Register Information System (ACRIS), which ‘supports the Office of the City Register in
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recording and maintaining official documents.’”); Zucker Real Estate Corp. v. Wilson, 2019 N.Y.
Slip Op. 30932, 4-5 (N.Y. Sup. Ct. N.Y. Co. 2019) (taking judicial notice of mortgage recording
in ACRIS for purposes of considering a motion to dismiss); Crepin v. Fogarty, 59 A.D.3d 837,
839 (3d Dep’t 2009) (same). Because the documentary evidence – the deed and the tax map –
establishes that Plaintiff’s property does not have an easement over CCM’s property, and that there
is no 6-foot land between Lot 4 and Lot 1, the trespass action must be dismissed under C.P.L.R.
3211(a)(1).
CONCLUSION
For the above reasons, and those stated in the accompanying Affirmation, Defendant
Community Counseling and Mediation respectfully request the Court to dismiss Plaintiff’s
Complaint and to enter any order in favor of Defendant that the Court deems just.
DATED: New York, New York
May 9, 2022
LOANZON LLP
______________________________
By: Tristan C. Loanzon, Esq.
Attorneys for Defendant Community Counseling and
Mediation
1345 Avenue of the Americas, Fl. 2
New York, NY 10105
(212) 760-1515
TO: Richard Paul Stone
1345 Avenue of the Americas, Suite 200
New York, NY 10105
(516) 642-1987
rps@stonecounsel.com
Attorney for Plaintiff Cheryl Turner
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Preview
FILED: KINGS COUNTY CLERK 05/09/2022 04:23 PM INDEX NO. 507841/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/09/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------- x CHERYL TURNER, : Index No. 507841/2022 : Plaintiff, : : -against- : : COMMUNITY COUNSELING AND : MEDIATION and HAYAA SNEDIKER LLC, : : Defendants. : ---------------------------------- x DEFENDANT COMMUNITY COUNSELING AND MEDIATION’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS Co-Defendant Community Counseling and Mediation (“CCM”), by its attorney Loanzon LLP, submits this memorandum of law in support of its motion to dismiss pursuant to C.P.L.R. § 3211(a)(1) and (7). FACTS The following facts are alleged in the Complaint: Plaintiff Cheryl Turner brings private nuisance and trespass claims against an owner (and former owner) of a vacant lot adjacent to her building. The vacant lot is owned by co-defendant Community Counseling and Mediation since February 2020; prior to that, the vacant lot was owned by co-defendant Hayaa Snediker LLC. For her First Cause of Action for private nuisance, Turner claims that the vacant lot (“Lot”) has an irregular and non-level surface “causing water to penetrate” Turner’s building and undermine its foundation and its integrity. Turner claims that uncontrolled vegetation growth in the Lot caused similar damage to her building, despite the vegetation clean-up performed by CCM on the Lot in 2021. Lastly, Turner claims that the “deterioration” of the vegetation and irregular surface of the Lot caused similar damage to her building. 1 of 6 FILED: KINGS COUNTY CLERK 05/09/2022 04:23 PM INDEX NO. 507841/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/09/2022 For Turner’s Second Cause of Action for trespass, she claims that CCM built a fence between the Lot and her building which deprived her of “the use of a portion of her property running between the Building and the Lot.” That boundary, according to Turner, is “approximately six feet in width” from her property’s line. Motion to Dismiss Standard On a C.P.L.R. 3211(a) motion to dismiss, although the pleaded facts are presumed to be true and accorded every favorable inference, allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration. See Biondi v. Beekman Hill House Apt. Corp., 257 A.D.2d 76, 81 (1st Dep’t 1999), aff’d, 94 N.Y.2d 659 (2000); Gertler v. Goodgold, 107 A.D.2d 481, 485 (1st Dep’t 1985), aff’d, 66 N.Y.2d 946 (1985). While a movant must concede well-pleaded factual assertions, it does not concede assumptions, opinion, speculations and/or conclusions of law. Spock v. Pocket Books, Inc., 48 Misc. 2d 812, 813 (Sup. Ct. N.Y. Co. 1965). The Complaint cannot “succeed upon any reasonable views” of the facts alleged even if they are “deemed true” and “all reasonable inferences” are “drawn in favor” of the Plaintiff. See Davids v. State, 74 N.Y.S.3d 288, 291 (2d Dep’t 2018); Dunleavy v. Hilton Hall Apts. Co. LLC, 14 A.D.3d 479, 480 (2d Dep’t 2005). When the motion to dismiss is premised upon documentary evidence under C.P.L.R. 3211(a)(1), “such motion may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law.” Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002); Crepin v. Fogarty, 59 A.D.3d 837, 838 (2d Dep’t 2009). 2 2 of 6 FILED: KINGS COUNTY CLERK 05/09/2022 04:23 PM INDEX NO. 507841/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/09/2022 I. Plaintiff Fails to Sufficiently Allege a Claim for Private Nuisance. Private nuisance is the “invasion of [an] interest in the private use and enjoyment of land.” Copart Indus., Inc. v. Consol. Edison Co. of New York, 41 N.Y.2d 564, 569 (1977); Jobe v. Chelsea Hotel Owner, LLC, 2020 N.Y. Slip Op. 33588, *4 (N.Y. Sup. Ct. N.Y. Co. 2020). A plaintiff must allege: “(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act.” Berenger v. 261 W. LLC, 93 A.D.3d 175, 182 (1st Dep’t 2012) (citing Copart Indus., 41 N.Y.2d at 570). “However, not every annoyance will constitute a nuisance.” Jobe, 2020 N.Y. Slip Op. 33588, at *4. The plaintiff also must allege “a continuous invasion of rights—a pattern of continuity or recurrence of objectionable conduct.” Id. (emphasis added). Here, Plaintiff’s private nuisance claim fails for multiple reasons. First, Plaintiff fails to satisfy the first element of private nuisance because she does not allege that the “condition, vegetation, and deterioration of the Lot” interfered substantially with her Building. She generally alleges that the nuisance is “undermining the structural integrity” of her property and is “requiring significant repair.” She does not allege how a vacant lot – without any structures, unexcavated, and unoccupied – affects the integrity of her building, or allege what repairs were required and what she paid for them, if any. Second, Turner does not allege that CCM intentionally allowed water to flow from the Lot to the Building. She does not allege that CCM was reckless or negligent in allowing water to flow from the Lot to the Building. There is no source of water in the Lot. The water that Turner complains about is presumably rainwater (she calls it “natural and artificial water”). Lastly, the Complaint failed to allege that the nuisance was recurring. “A cause of action to recover for the creation of a private nuisance must be supported by evidence sufficient to 3 3 of 6 FILED: KINGS COUNTY CLERK 05/09/2022 04:23 PM INDEX NO. 507841/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/09/2022 demonstrate a “recurrence of objectionable conduct.” Domen Holding Co. v. Aranovich, 1 N.Y.3d 117, 114 (2003), quoting Frank v Park Summit Realty Corp., 175 A.D.2d 33, 34 (1st Dept. 1991), mod. on other grounds, 79 N.Y.2d 789 (1991); see Duane Reade v Reva Holding Corp., 30 A.D.3d 229, 237 (1st Dep’t 2006). Here, Plaintiff does not allege that the nuisance – which she defined as “condition, vegetation, and deterioration” – is recurring. As to condition, Plaintiff alleges that the Lot is not leveled and has irregular surface, but she does not say how the irregular surface affect her property in recurring manner. With respect to her claim for nuisance based on “growth of vegetation,” Turner conceded that CCM cleaned the vegetation in 2021, which would establish that the vegetation nuisance is not recurring. As regards deterioration, she claimed that the Lot received “natural and artificial water” and “penetrated” her building, but there is no allegation that such event is recurring. When it rains, water tends to accumulate or flow from one property to the next, but that fact does not support a claim for nuisance. II. Plaintiff’s Claim for Trespass is Contradicted by Documentary Evidence. Plaintiff’s Second Cause of Action, for trespass, must be dismissed because Plaintiff has alleged no tangible entry into the Building. It is well-settled that “[a] trespass claim represents an injury to the right of possession, and the elements of a trespass cause of action are an intentional entry onto the land of another without permission.” C&B Enters. USA, LLC v. Koegel, 136 A.D.3d 957, 959 (2d Dep’t 2016) (quoting Ivory v. IBM, 116 A.D.3d 121, 129 (3d Dep’t 2014)). However, “[c]ourts have precluded trespass claims where the entry or intrusion was intangible.” C&B Enters., id. Here, Turner alleged that she owns a 6-foot wide piece of land that is outside of her property line and is between her Building and the Lot. She appears to be claiming an additional piece of property outside the Building or an easement that runs between the Building and the Lot. However, 4 4 of 6 FILED: KINGS COUNTY CLERK 05/09/2022 04:23 PM INDEX NO. 507841/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/09/2022 Turner’s claim for trespass is contradicted by the deed to the land occupied by the Building. The deed shows that the plaintiff does not own any property or easement that is 6-foot wide running between the Building and the Lot. A copy of the deed to Plaintiff’s property at 743 Snediker Avenue, Brooklyn, New York 11207 – with designation Block 3874, Lot 4 – is attached as Exhibit B to the accompanying Affirmation of Tristan C. Loanzon, sworn to on May 9, 2022 (“Loanzon Affirmation”). In the deed, the description of Plaintiff’s land (Lot 4) does not mention any easement that was reserved to Lot 4, and instead describes a four-foot easement in the property to the north of Plaintiff’s: TOGETHER with an easement over the most southerly 4 feet of the premises immediately adjoining the above described premises on the north for light, air and access and SUBJECT to an easement over the most northerly 4 feet of the premises herein described for light, air and access. Exhibit B (emphasis added). CCM’s property is to the south of Plaintiff’s. To further illustrate the point, the tax map from ACRIS shows the relative positions of Plaintiff’s and CCM’s respective properties. See Loanzon Affirmation, Exhibit C. It is evident from the tax map that the property to the north (Lot 5) of Plaintiff’s property (Lot 4) is not CCM’s property which is in southern portion and is located in Lot 1. Therefore, the easement described in Plaintiff’s deed is with the neighboring Lot 5, and not Lot 1 (CCM’s property). The court may take judicial notice of the deed and description obtained from ACRIS and consider them on a motion to dismiss. See 766 Miller Lend LLC v. Flamingo Funding Inc., 2015 N.Y. Slip Op. 31220, *4 n.4 (N.Y. Sup. Ct. Kings Co. 2015) (“The court, in its discretion, takes judicial notice of the publically recorded Mortgage, mortgage assignment, assumption agreement, modification agreement, security agreements and deed regarding the Property and identified herein that are maintained on the New York City Department of Finance City Register’s Automated City Register Information System (ACRIS), which ‘supports the Office of the City Register in 5 5 of 6 FILED: KINGS COUNTY CLERK 05/09/2022 04:23 PM INDEX NO. 507841/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/09/2022 recording and maintaining official documents.’”); Zucker Real Estate Corp. v. Wilson, 2019 N.Y. Slip Op. 30932, 4-5 (N.Y. Sup. Ct. N.Y. Co. 2019) (taking judicial notice of mortgage recording in ACRIS for purposes of considering a motion to dismiss); Crepin v. Fogarty, 59 A.D.3d 837, 839 (3d Dep’t 2009) (same). Because the documentary evidence – the deed and the tax map – establishes that Plaintiff’s property does not have an easement over CCM’s property, and that there is no 6-foot land between Lot 4 and Lot 1, the trespass action must be dismissed under C.P.L.R. 3211(a)(1). CONCLUSION For the above reasons, and those stated in the accompanying Affirmation, Defendant Community Counseling and Mediation respectfully request the Court to dismiss Plaintiff’s Complaint and to enter any order in favor of Defendant that the Court deems just. DATED: New York, New York May 9, 2022 LOANZON LLP ______________________________ By: Tristan C. Loanzon, Esq. Attorneys for Defendant Community Counseling and Mediation 1345 Avenue of the Americas, Fl. 2 New York, NY 10105 (212) 760-1515 TO: Richard Paul Stone 1345 Avenue of the Americas, Suite 200 New York, NY 10105 (516) 642-1987 rps@stonecounsel.com Attorney for Plaintiff Cheryl Turner 6 6 of 6