The opinion
Everton Props. LLC v City of New York
2025 NY Slip Op 30784(U)
March 10, 2025
Supreme Court, New York County
Docket Number: Index No. 153778/2021
Judge: Ariel D. Chesler
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
FILED: NEW YORK COUNTY CLERK 03/10/2025 01:10 PM INDEX NO. 153778/2021
NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/10/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ARIEL D. CHESLER PART 62M
Justice
---------------------------------------------------------------------------------X INDEX NO. 153778/2021
EVERTON PROPERTIES LLC,
MOTION DATE 08/28/2024
Plaintiff,
MOTION SEQ. NO. 002
-v-
THE CITY OF NEW YORK, THE NEW YORK CITY
SCHOOL CONSTRUCTION AUTHORITY, THE
DECISION + ORDER ON
DEPARTMENT OF EDUCATION OF THE CITY OF NEW
YORK MOTION
Defendant.
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The following e-filed documents, listed by NYSCEF document number (Motion 002) 23, 24, 25, 26, 27,
28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55,
56, 57, 58, 59, 60, 61, 62, 63, 64, 87
were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER .
Background
In this action, Plaintiff seeks to recover for damage caused to its property by a tree
located on Defendants’ neighboring property, and which Plaintiff alleges caused structural
damages to its building.
Although the matter was commenced in 2021, and a preliminary conference requested in
2022, a Case Scheduling Order was not issued until August 29, 2023. Thereafter, the parties
entered into additional discovery stipulations in February and June of 2024. Despite the various
deadlines set, discovery, including depositions, did not place as scheduled.
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Motion No. 002
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Plaintiff filed this motion for summary judgment and for an order striking Defendants’
Answer on August 28, 2024. Defendants submitted opposition in September 2024, and Plaintiff
filed a reply in that same month.
The Motion
In support of its motion, Plaintiff submitted an affidavit from Joseph Aizer, property
manager and the authorized signatory of Plaintiff. Aizer explained that he is regularly on site and
familiar with Plaintiff’s Premises, and that since early 2020, a tree situated entirely on the
Defendants’ property located at Block 3241, Lot 71, Brooklyn, New York (P.S. 274) has
undermined and damaged the easterly most wall of the Plaintiff’s Premises. Aizer attached to his
affidavit deeds for Plaintiff’s and Defendants’ property, as well as a survey showing the
properties are next to each other and that the tree is located on Defendants’ property.
According to Aizer, for years, Defendants negligently permitted the Tree to fall into such
a state of disrepair until it finally breached the easterly wall of Plaintiff’s building, causing
substantial damage. Aizer stated that on numerous instances between 2020 and 2022, he
personally observed and witnessed the Tree growing into the Wall causing it to buckle. He
attached photographs of the wall which he took in 2021 showing cracks and damage.
Aizer further stated that in relation to the tree damage Plaintiff was issued a violation by
the Office of Administrative Trials and Hearings (“OATH”), which he attached. In addition,
Aizer stated that on May 26, 2022, the New York City Department of Buildings ordered a full
vacate order of the entirety of the Plaintiff’s Premises. Attached to the affidavit was copy of the
vacate order.
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Aizer next claimed that Plaintiff’s costs include, but are not limited to, the following: (a)
construction costs to remediate the Plaintiff’s Premises as a result of the severe structural issues
caused by the Tree; (b) engineering fees to design the repair of the Plaintiff’s Premises as a result
of the structural cracking; (c) expeditor fees to obtain DOB permits for remediation work; (d)
retaining a monitoring company to perform “crack gauge” readings and perform other
monitoring as a result of the possible structural instability caused by the Tree; (e) loss of rental
income due to the Vacate Order; (f) the entire loss of its commercial tenant, and replacement
with a tenant paying less rent; (g) loss of use of the Plaintiff’s Premises, and the mortgage during
this time, which remained due and owing; and (h)legal fees.
Aizer attached copies of Plaintiff’s invoices, rent ledger, and other documents supporting
its costs, and stated that the total amount of damages incurred by Plaintiff was $970,494.86.
Plaintiff also attached an affidavit from Solomon Rosenzweig, a licensed professional
engineer in New York. Rosenzweig explained that he was retained by Plaintiff to inspect the
subject premises. On August 30, 2022, he inspected both the interior and exterior of the
Plaintiff's Premises, including taking measurements of the same.
Rosenzweig stated as follows:
Based upon my inspection, I observed a tree growing on the exterior of Plaintiff's
Premises, located beyond the property line in the Adjacent Premises, that appears to be
undermining the structural wall of the Plaintiff's Premises (the "Tree").
During my inspection of the interior of the Plaintiff's Premises, I observed that the
wall of the Plaintiff's Premises that is located directly adjacent to the Tree appears to have
buckled inwards, causing significant structural damage to the Plaintiff's Premises.
During the progress of repairs, I observed tree roots and the remnants of the tree stump
occupying the space of the foundation, thereby proving that the tree had definitely caused
the displacement which undermined the exterior wall of the Plaintiff's Premises, and is a
direct proximate cause of the damages I observed therein, including severe damages to
the structural stability of the Plaintiff's Premises.
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Also attached to the motion were the various discovery orders and stipulations and email
communications between counsel relating to discovery and efforts to settle the matter.
In opposition, Defendants did not provide an affidavit from anyone with personal
knowledge of the subject properties or tree or an affirmation from an expert.
However, counsel for Defendants argued that Plaintiff had not established a prima facie
entitlement to summary judgment based on the affidavit and expert affirmation it had submitted.
Separately, counsel asserted that damages, comparative fault, and whether Plaintiff had failed to
mitigate damages have to be decided by a jury.
Counsel also argued that striking its Answer is unwarranted and overly harsh because
there was no showing that its failure to comply with discovery was willful, contumacious, or in
bad faith. Relatedly, counsel suggested the motion was premature and that it should have the
opportunity to engage in discovery and produce a witness. No details about the witness they
identified or what testimony the witness could offer were provided.
Discussion
The proponent of a summary judgment motion has the initial burden of establishing a
prima facie showing that it is entitled to summary judgment as a matter of law, providing
sufficient evidence that no material issues of triable fact exist (Trustees of Columbia Univ. in the
City of N.Y. v D'Agostino Supermarkets, Inc., 36 NY3d 69, 74 [2020]; Alvarez v Prospect Hosp.,
68 NY2d 320, 324 [1986]). Once this burden has been met, the burden shifts to the opposing
party to “produce evidentiary proof in admissible form sufficient to require a trial of material
questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or
assertions are insufficient” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; De
Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]).
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To establish a common law claim for negligence, it is well settled that a plaintiff must
demonstrate the existence of a duty, the breach of which may be considered the proximate cause
of damages suffered by the injured plaintiff. (See Katz v United Synagogue of Conservative
Judaism, 135 AD3d 458 [1st Dept 2016]). As is relevant here, an adjacent landowner owes “a
duty to exercise reasonable care in the maintenance of its property to prevent foreseeable injury
that might occur on the adjoining property” (Brown v Long Is. R.R. Co., 32 AD3d 813 [2006];
see also Associated Mut. Ins. Coop. v 198, LLC, 78 AD3d 597, 597 [1st Dept 2010]). Moreover,
summary judgment is warranted where an expert’s affidavit “establishes as a matter of law that
defendant's tree is responsible for the damage to plaintiff's retaining wall” (1212 Ocean Ave.
Hous. Dev. Corp. v. Brunatti, 2007 WL 7112998 [Sup Ct, Kings County], aff’d 50 AD3d 1110
[2nd Dept 2008]).
Liability for private nuisance arises from conduct that invades another’s interest in the
use and enjoyment of real property, and where the invasion is both intentional and unreasonable,
and caused by another’s conduct in acting or failing to act. (Copart Indus., Inc. v Consol. Edison
Co. of New York, Inc., 41 NY2d 564 [1977]).
Here, Plaintiff established that the subject tree was entirely situated on Defendants’
Premises; that Defendants had a non-delegable duty to maintain the Tree; that Defendants
breached that duty; and that Defendants’ breach is a direct and proximate cause of the damage to
Plaintiff’s wall. Specifically, Plaintiff met its initial burden by submitting the relevant deeds,
survey, photographs, and an affidavit from its expert stating that the tree roots had caused the
displacement which undermined the exterior wall of the Plaintiff's premises, and is a direct
proximate cause of the damages he observed, including severe damages to the structural stability
of the building.
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Plaintiff also demonstrated that Defendants were on notice of the tree and the damages it
was causing to Plaintiff’s Premises as illustrated by the Notice of Claim sent on February 19,
2020. Plaintiff also showed that it has attempted to solicit Defendants' assistance in remediating
the issues caused by the tree, but Defendants have refused or failed to offer such assistance or
perform and remediation work.
Under very similar circumstances, the Plaintiff in 1212 Ocean Ave. Hous. Dev. Corp. was
granted summary judgment on its negligence claim where the defendant’s tree damaged the
plaintiff’s retaining wall. The court found that the plaintiff’s expert affidavit, who inspected the
plaintiff’s wall and determined that tree’s roots had damaged the wall and caused it to bow. The
court concluded that the expert’s affidavit established as a matter of law that defendant’s tree
was responsible for the damage.
Here, as in 1212 Ocean Ave. Hous. Dev. Corp., the Defendants failed to refute Plaintiff’s
expert or submit any evidence to attempt to show there are any triable issues of fact.
Accordingly, Plaintiff is entitled to summary judgment. Defendants have not rebutted Plaintiff’s
prima facie case, as their only response is the affirmation of its counsel, which does not satisfy
the requirement that the party opposing a motion for summary judgment demonstrate a triable
issue of fact with admissible evidence (see Zuckerman v City of New York, 49 NY2d at 560;
Ramirez v Miller, 29 AD3d 310, 314 [1st Dept 2006]). The Court rejects the contention that the
holding in 1212 Ocean Ave. Hous. Dev. Corp. is not applicable here.
The Court has considered Defendants’ arguments that Plaintiff failed to establish a prima
facie entitlement to summary judgment and finds them unavailing. In particular, the Court rejects
the claim that the motion is premature and notes that Defendants fail to provide any details about
what witness they have identified and what material issues of fact they could possibly establish.
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Indeed,"[t]he mere hope that additional discovery may lead to sufficient evidence to defeat a
summary judgment motion is insufficient to deny such a motion." (Is. Fed. Credit Union v I&D
Hacking Corp., 194 AD3d 482, 482 [1st Dept 2021]; Singh v NY City Hous. Auth., 177 AD3d
475, 476 [1st Dept 2019] [rejecting defendant’s contention that summary judgment was
premature, since defendant had a reasonable opportunity to pursue discovery and has not shown
that it was diligent in that pursuit]).
In light of the foregoing, the Court does not reach the Plaintiff’s request to strike the
Answer or impose discovery sanctions against Defendants. Because Plaintiff’s request for
summary judgment in its favor is being granted, this branch of the motion has been rendered
moot.
Accordingly, it is
ORDERED that the motion is granted to the extent of granting Plaintiff summary judgment on
liability.
This constitutes the Decision and Order of this Court.
3/10/2025
DATE ARIEL D. CHESLER, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
□ □
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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