Krakovski v Stavros Associates, LLC
Attorneys and Parties
Brief Summary
Neighboring property dispute over ventilation pipes allegedly protruding over the property line and emitting boiler exhaust, giving rise to private nuisance and trespass claims.
The Supreme Court, Kings County granted the defendant’s motion to dismiss the amended complaint under CPLR 3211(a) and denied the plaintiff’s cross-motion for summary judgment.
The dismissal of the amended complaint; the Appellate Division denied the defendant’s CPLR 3211(a) motion and reinstated the private nuisance and trespass claims.
No prejudice was shown from the timing of the amended complaint and prior appellate leave had expressly authorized the amendment under CPLR 3025(b) [provision allowing leave to amend pleadings, to be freely granted absent prejudice]. The amended complaint adequately pleaded private nuisance and trespass. However, summary judgment for the plaintiff was properly denied because he failed to make a prima facie showing. Relevant statutes: RPAPL 871 [authorizing an action for injunctive relief to compel removal of encroachments]; CPLR 3211 [rule allowing pre-answer dismissal of pleadings, including for failure to state a cause of action].
Background
The parties own adjoining properties. In 2008, the defendant installed ventilation pipes alleged to protrude over the plaintiff’s property and emit boiler exhaust into the plaintiff’s semi-enclosed yard. The plaintiff commenced an action, including a claim under RPAPL 871 for injunctive relief to address the pipes. In 2017, the Supreme Court dismissed the RPAPL 871 claim and denied leave to add private nuisance and trespass. On appeal, the Appellate Division (173 AD3d 1146) granted leave to amend. The plaintiff served an amended complaint alleging private nuisance and trespass. The defendant moved to dismiss under CPLR 3211(a), and the plaintiff cross-moved for summary judgment.
Lower Court Decision
The Supreme Court granted the defendant’s CPLR 3211(a) motion, dismissing the amended complaint as untimely and on pleading grounds, and denied the plaintiff’s cross-motion for summary judgment on liability.
Appellate Division Reversal
Modified: the Appellate Division denied the defendant’s CPLR 3211(a) motion because the prior appellate order had granted leave to amend and the defendant showed no prejudice under CPLR 3025(b). The court held the amended complaint states viable causes of action for private nuisance (alleged substantial, intentional, unreasonable interference with use and enjoyment) and trespass (alleged unauthorized entry by the defendant’s agents to install the pipes). Affirmed: the denial of plaintiff’s summary judgment because he failed to establish a prima facie case—no sufficient proof of substantial and unreasonable interference for nuisance and no evidence of actual physical entry for trespass.
Legal Significance
Confirms that once leave to amend is granted, delay alone—without demonstrated prejudice—cannot justify dismissal as untimely under CPLR 3025(b). Clarifies pleading sufficiency for private nuisance (substantial, intentional, unreasonable interference with use/enjoyment) and distinguishes intangible intrusions (fumes) as nuisance rather than trespass absent proof of physical entry. Reinforces that a plaintiff must make a prima facie evidentiary showing to obtain summary judgment even when the pleadings are sufficient.
Leave to amend is liberally granted and cannot be undone merely due to delay absent prejudice; well-pleaded nuisance and trespass claims survive a CPLR 3211 motion, but summary judgment requires concrete proof of substantial interference (nuisance) and physical entry (trespass).