Preview
FILED: WESTCHESTER COUNTY CLERK 10/19/2015 09:37 AM INDEX NO. 65333/2012
NYSCEF DOC. NO. 194 RECEIVED NYSCEF: 10/16/2015
To commence the statutory
time for appeals as of right
(CPLR 5513[a]), you are
advised to serve a copy
of this order, with notice
of entry, upon all parties.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
PRESENT: HON. WILLIAM J. GIACOMO, J.S.C.
------------------------------------------------------------------------x
WHITE PLAINS COMPANY, LLC, Index No. 65333/2012
Plaintiff,
DECISION AND ORDER
-against-
ANDREW DEEM, MICHAEL A. DEEM, and
ANNA MARIE DEEM,
Defendants.
-------------------------------------------------------------------------x
The following papers numbered 1 to 7 were read on defendants' order to show cause
seeking to vacate the November 1,2013 and July 14, 2014 order of the Court.
PAPERS NUMBERED
Defendants' Order To Show Cause/Affidavits/Exhibits 1-3
Affirmation in Opposition/Exhibits 4-5
Rep~~~~ion 6
Plaintiffs Order to Show Cause 7
Factual and Procedural Background
Plaintiff commenced this action on September 24,2012. The first cause of action
sought injunctive relief claiming that the defendants allowed water to flow onto their
property. The second cause of action sought damages under a theory of negligence and
the third sought damages under a theory of nuisance and trespass. Issue was joined on
November 14, 2012.
During the pendency of the action, plaintiff moved for, among other things, leave to
enter defendants' property to perform certain repairs.
By decision and order dated November 4, 2013, the Court (Hubert J.) denied
plaintiff's request for an immediate decision on the issues of negligence, nuisance and
trespass. However, the Court considered and granted plaintiff's application for a license
to enter upon defendants' property to make repairs. The Court converted the Order to
Show Cause into a special proceeding brought pursuant to RPAPL ~ 881. The Court then
granted plaintiff's application for a license to enter upon defendants' property for the limited
purpose of repairing the exterior, abutting garage wall, which the Court found would also
inure to the benefit of defendants.
By decision and order dated July 14, 2014, the Court (Hubert, J.) decided an order
to show cause brought by plaintiff to hold defendants in contempt for failing to comply with
November 4, 2013 order of the court and defendants' cross motion to reconsider its
November 4, 2013 decision and order. The July 14, 2014 order directed plaintiff to file and
serve defendants with an excavation, waterproofing, and restoration plan; directed
defendants to complete the appropriate permits and forms necessary; directed plaintiff to
provide proof of insurance; and directed defendants to delineate the costs to itof the
permits applications.
In July 2015, a jury trial was held and the plaintiff's negligence claims were
submitted to the jury since the Trial Court dismissed plaintiff's nuisance and trespass
claims after the close of proof.
On July 15, 2015, the jury found that although defendants were negligent their
negligence was not a substantial factor in causing plaintiff's damages.
Defendants now move to vacate the November 4,2013 and July 14, 2014 orders
on the ground that since the jury found them not to be negligent, those orders which were
in essence a granting of a preliminary injunction must be vacated since plaintiff did not
succeed on the merits. Defendants also seek a judgment dismissing the complaint in its
entirety.
In opposition, plaintiff argues that contrary to defendants' arguments the November
4, 2013 decision by the court was not the granting of a preliminary injunction but rather a
final determination made pursuant to RPAPL ~ 881 granting it a license to enter
defendants' property to make repairs. Therefore, the determination of the jury on July 15,
2015 had no impact upon the November 4, 2013 decision and order. Plaintiff notes that
although defendants were served with Notice of Entry of the November 4, 2013 and July
14, 2014 orders, defendants did not appeal either of those orders.
2
Discussion
As plaintiff correctly notes in its November 4,2013 decision and order the Court
granted plaintiff's application for a license to enter the property pursuant to RPAPL S 881,
not CPLR Article 63. Therefore, the Court's granting of the license was not a preliminary
injunction pending the outcome of the case, but rather a final determination on the merits
of that issue. .
It is worthy to note that in the decision and order the Court made clear the finality
of its decision by stating:
The parties may argue what precisely is causing the damage, but there is no
legitimate argument that there is no damage. Granting petitioner/plaintiff
license for the limited purpose of repairing the exterior, abutting wall, inures
to the benefit of allparties to the litigation. Should Plaintiff ultimately prevail
on the underlying action, then waterproofing at this juncture should mitigate
the damages to be assessed the defendants. Should the defendant
ultimately prevail, the petitioner/plaintiff would stillhave recourse under
RPAPL S 881 to go on the defendants' property to effect repairs.
As plaintiff properly argues, the license was granted regardless of the jury verdict.
Moreover, defendants, who did not appeal the November4, 2013 or July 14, 2014 decision
and orders cannot now attempt to reargue them.
Accordingly, based upon the foregoing, defendants' motion to vacate the November
4,2013 and July 14, 2014 decision and orders of the court is DENIED.
Plaintiff and Defendants are directed to comply with directions of both orders
within 20 days of the date of this Order; compliance shall be on or before November
4,2015.
Based on the foregoing, the Court declines to sign plaintiffs Order to Show
Cause since the relief sought has been granted herein.
Dated: White Plains, New York
October 16,2015
~MOJSC
H:\ALPHABETICAL MASTER LIST-WESTCHESTER\white Plains v. Deem (Vacate orders) .wpd
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Preview
FILED: WESTCHESTER COUNTY CLERK 10/19/2015 09:37 AM INDEX NO. 65333/2012 NYSCEF DOC. NO. 194 RECEIVED NYSCEF: 10/16/2015 To commence the statutory time for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PRESENT: HON. WILLIAM J. GIACOMO, J.S.C. ------------------------------------------------------------------------x WHITE PLAINS COMPANY, LLC, Index No. 65333/2012 Plaintiff, DECISION AND ORDER -against- ANDREW DEEM, MICHAEL A. DEEM, and ANNA MARIE DEEM, Defendants. -------------------------------------------------------------------------x The following papers numbered 1 to 7 were read on defendants' order to show cause seeking to vacate the November 1,2013 and July 14, 2014 order of the Court. PAPERS NUMBERED Defendants' Order To Show Cause/Affidavits/Exhibits 1-3 Affirmation in Opposition/Exhibits 4-5 Rep~~~~ion 6 Plaintiffs Order to Show Cause 7 Factual and Procedural Background Plaintiff commenced this action on September 24,2012. The first cause of action sought injunctive relief claiming that the defendants allowed water to flow onto their property. The second cause of action sought damages under a theory of negligence and the third sought damages under a theory of nuisance and trespass. Issue was joined on November 14, 2012. During the pendency of the action, plaintiff moved for, among other things, leave to enter defendants' property to perform certain repairs. By decision and order dated November 4, 2013, the Court (Hubert J.) denied plaintiff's request for an immediate decision on the issues of negligence, nuisance and trespass. However, the Court considered and granted plaintiff's application for a license to enter upon defendants' property to make repairs. The Court converted the Order to Show Cause into a special proceeding brought pursuant to RPAPL ~ 881. The Court then granted plaintiff's application for a license to enter upon defendants' property for the limited purpose of repairing the exterior, abutting garage wall, which the Court found would also inure to the benefit of defendants. By decision and order dated July 14, 2014, the Court (Hubert, J.) decided an order to show cause brought by plaintiff to hold defendants in contempt for failing to comply with November 4, 2013 order of the court and defendants' cross motion to reconsider its November 4, 2013 decision and order. The July 14, 2014 order directed plaintiff to file and serve defendants with an excavation, waterproofing, and restoration plan; directed defendants to complete the appropriate permits and forms necessary; directed plaintiff to provide proof of insurance; and directed defendants to delineate the costs to itof the permits applications. In July 2015, a jury trial was held and the plaintiff's negligence claims were submitted to the jury since the Trial Court dismissed plaintiff's nuisance and trespass claims after the close of proof. On July 15, 2015, the jury found that although defendants were negligent their negligence was not a substantial factor in causing plaintiff's damages. Defendants now move to vacate the November 4,2013 and July 14, 2014 orders on the ground that since the jury found them not to be negligent, those orders which were in essence a granting of a preliminary injunction must be vacated since plaintiff did not succeed on the merits. Defendants also seek a judgment dismissing the complaint in its entirety. In opposition, plaintiff argues that contrary to defendants' arguments the November 4, 2013 decision by the court was not the granting of a preliminary injunction but rather a final determination made pursuant to RPAPL ~ 881 granting it a license to enter defendants' property to make repairs. Therefore, the determination of the jury on July 15, 2015 had no impact upon the November 4, 2013 decision and order. Plaintiff notes that although defendants were served with Notice of Entry of the November 4, 2013 and July 14, 2014 orders, defendants did not appeal either of those orders. 2 Discussion As plaintiff correctly notes in its November 4,2013 decision and order the Court granted plaintiff's application for a license to enter the property pursuant to RPAPL S 881, not CPLR Article 63. Therefore, the Court's granting of the license was not a preliminary injunction pending the outcome of the case, but rather a final determination on the merits of that issue. . It is worthy to note that in the decision and order the Court made clear the finality of its decision by stating: The parties may argue what precisely is causing the damage, but there is no legitimate argument that there is no damage. Granting petitioner/plaintiff license for the limited purpose of repairing the exterior, abutting wall, inures to the benefit of allparties to the litigation. Should Plaintiff ultimately prevail on the underlying action, then waterproofing at this juncture should mitigate the damages to be assessed the defendants. Should the defendant ultimately prevail, the petitioner/plaintiff would stillhave recourse under RPAPL S 881 to go on the defendants' property to effect repairs. As plaintiff properly argues, the license was granted regardless of the jury verdict. Moreover, defendants, who did not appeal the November4, 2013 or July 14, 2014 decision and orders cannot now attempt to reargue them. Accordingly, based upon the foregoing, defendants' motion to vacate the November 4,2013 and July 14, 2014 decision and orders of the court is DENIED. Plaintiff and Defendants are directed to comply with directions of both orders within 20 days of the date of this Order; compliance shall be on or before November 4,2015. Based on the foregoing, the Court declines to sign plaintiffs Order to Show Cause since the relief sought has been granted herein. Dated: White Plains, New York October 16,2015 ~MOJSC H:\ALPHABETICAL MASTER LIST-WESTCHESTER\white Plains v. Deem (Vacate orders) .wpd 3