Petition for Writ of Certiorari — Zhuang Li Cai v. Uddin

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supreme Court, U.S

FILED

No 10-614 UN 24 2010

OFFICE OF THE CLERK

Che Supreme Court of the Gnited States

Zhuang Li Cai,

Petitioner,

M.D elaiml Uddin,

Respondent,

I RR aha ds ge eae Cee ae

Petition For Writ of Certiorar1

; Pe aee el eh acan aoa eaens

Zhuang Li Cai

Pro Se

9934 67rd, apt 1A

Forest hills, NY 11375

Questions presented

Is the Constitution and the Law protects

private property?

Is everyone can intentionally use fence de

minimis encroachment to occupy neighbor's

land and declare is his land?

Why invader can use other people's land for

free and the owner pays tax and cannot use?

Is the Constitution require owner provide to

the court any thing other than prove the

ownership of the land for get court order let

the invader move out. of owner’s land?

Is Constitution say I need expertise law

knowledge for get protection?

What is the nature function of a fence? Can

you declare your property line is inside of

other people's fence post?

What is the quantitative measure of de

. . —_ qu .

minimis? What is the nature of adverse

possession?

Is invader can use fence de minim:

encroachment to occupy other people's land

then wait until the invader can’ perform

adverse possession to legalize the ownership?

Is it.a legal land robbery method?

Is the de minimis more weight than the

Constitution”?

10.ls the court serve for truth, justice and

fairness? Is any guide line for Judge to use

ruling examples?

ll.Is the Umited States Supreme Court

protecting people’s Constitution right?

List of Parties

Zhuang Li Cai — Petitioner

9934 67rd Apt 1A

Forest Hills, NY 11375

718 897 5751

MD Jamil Uddin - Respondent

RICHARD N. GOLDEN, P.C.

Attorney for Respondent

118-35 Queens Boulevard, Suite 1220

Forest Hills, New York 11375

718 261 2600

Table of contents

Opinions below........ --

Constitution and Statutory p rovisions Involved .

Statement of the case ..... DN eset SOME A ee fils ay

Reasons tor ori iting the writ LT ey re noe ere 5

1. Lower court decision is unconstitution: L. Pet G

2. Intentional encroachment 1s no Btictence from

street robbery........... SS rate Mae : ey

Fence encroac sian vit goal not allowed ...........8

4 The quantitative measure of de minimis 9

5. The lower court decision base is improper.........9

6. Truth and Justice should serve in court ............. 1]

7. Agreement should enforced ..............ccce eee eeeeee Ld

8. Basic science and logic should valid in the court.11

ee ee a Pepe |.

Appendix of Content

In Court of appeal:

Denial of Reargument- Hee an eReweN ene : « <2

Motion of Reargument:----- 3

Opposition of Reargument----------*-+77 777-0777 ‘+ =33°

Denial of move to Court of appeal---------->- == - 14

Motion move to Court of appeal----*----- ees aas 15°

Opposition on move to Court of appeal----- sideline de

In lower court:

wueens court GeCcisioi*****"***"*<"*7 oo" tno eee room ome

Appellate division decision 43

Initial motion in Queens court--- ' -45-

Respondent initial opposition--------*+***7>>>> -66-

Petitioner brief---- Retee Se RSE aus We ia

Respondent brief------------ sha soe eeeesnes es soos =>

Petitioner reply brief--*------------- s¥ennaeey nee «+ «98>

Transcript and court room exhibit--- ines ||

Opinions Below

The Queens Supreme Court finds “the posts to the

fence extend beyond the property line.” (Appendix

page -41- )

The Appellate Division confirmed “the alleged

encroachment onto appellant’s property consisted

of one or more fencepost intruding onto the

property by approximately two inches.” (Append

page -43- )

But both courts insist it is de minimis

encroachment and let Mr. Jamil’s fence occupy my

land. Both courts insist there is no evidence of

damages.

Constitution and Statutory Provisions Involved

Constitution: Bill of rights.

Private property should protect by Constitution

and Statutory.

The property owner has the right to use the

property not exclusively occupied by invader.

Declaration of independence said all men are

created equal.

VI New York Jur 24, “Adjoining Landowner”

section 119 page 757

§119 —Fences: Research References

West’s Key Number Digest, Boundaries ~3(4)

A fence erected on a surveyed line shortly after

the land has been surveyed may serve as a

monument to control courses and distances or a

subsequent survey after the stakes of the original

survey have disappeared. '

Where the premises have been bounded by a fence

for many years, the law presumes that the fence is

the true boundary, and will not disturb such a line,

even where it does not correspond with the line of

the premises as shown on the map according to

which they were conveyed.?

In a boundary dispute, the fact that by taking a

fence as the boundary the quantity of land would be

the same as that specified in the

Defendant’s chain of title is. significant in

determining the true line.’

1 Holden v. Crolly, 153 AD 254, 1388 N.Y.S 23(2d

Dep't 1912).

Annotation References: Fence as factor in fixing

location of boundary line--modern cases, 7 A.L.R

Ath 53

2 McMahon v. Morse, 135 Misc 233,287 N.Y.S. ‘861

(Sup i929).

As to the period of time adverse possession must

be maintained in. order to ripen into title, see

Adverse Possession and Prescription §§55,57

3 Whitney v. Dudley, 40 NY S.2d 888(Sup 1943),

judgment affd without opinion, 266 A.D. 1056, 45

NY.S 2d 725 (4th Dep’t 1943)

Additional New York law in Appendix -15- to -35-

when you feel need for evaluate the damages

Case Statement

In short:

Mr. Jamil’s new fence intentionally crosses the

property line by 2 inch. I cannot restore my fence.

ve

Facts:

a. Both parties are private house owner.

b. Mr. Jamil’s new fence post cross the property

line 2+ inches. The Appendix page -60-,-61- Exhibit

I (first post), -65- Exhibit N (last post) show both

post cross (orange mark) 2+ inches.

c. Mr. Jamil is intentionally take down my fence

build his new fence and declare the new fence is in

his land (Appendix page -68- to -69- items 14, 17,

18, 19).

d. The nature function for fence is to declare land

boundary and ownership. None can _ declare

property inside of other’s fence post.

e. The cost (<$2000) move fence post much less

than Mr. Jamil claimed spending $4,300 in legal

process (Appendix page -69-, item 20, 21,22).

''Format note: A calculation error found. The cost is

(<$1500) and the spending is $2,150. Detail

calculation already in lower court file appendix -86-

line 12, fact 2, -89- item 18, -101- last 3 lines)!!

f. Before Mir. Jamil build his new fence, both party

signed agreement the fence post not cross property

line.

1. Mr. Jamil builds his new house. We fight before

the fence is up. The agreement (Appendix page -48-

Exhibit A) is signed around the picture (Appendix

page -57- Exhibit F) taken it clearly shows the edge

of sidewalk. The agreement is his fence post will

NOT cross the property line.

When he signs this agreement, he also agrees on

oral I can take his fence down if his fence posts

cross the property line.

2. When he try take down my fence front part

(Appendix page -59-, Exhibit H) I called police

(Appendix page -80-, item 4 line 5).

3. He refuse accept the survey Phe ! got from

building department (Appendix -49-,-50- Exhibit B).

| hire one surveyor put property line stamp on the

ground (Appendix “60- Exhibit I) and hire another

surveyor do the new survey (Appendix -53- , -54-

TH... tt. ca TR

mxXnivit D).

Mr. Jamil destroys the first property stamp (Pin)

then I hire surveyor put on second times (Appendix

-G61- Exhibit J). Mr. Jamil destroys it again and

paints a red cross (Appendix -62- Exhibit K).

4. His fence constructed by 4X4 inches posts with

screw-mounted panel. Due to his fence occupy my 2

inch land I unable to restore my fence ( Appendix

-71- Exhibit B, -136- Exhibit D) unless his fence

post move out of my land.

Please notice that his fence is not common fence. If

it is common fence | will own 50% and I have right

to say “NO”. 6 feet high vinyl fence completely

prevent me carry big item out of backyard.

5. He claims his fence is inside of his land.

(Appendix -66- to -69- ) provides court altered

agreement (Appendix -70- ) and a suspicious survey

from Albert A. Bianco which is the only survey

claim the property line is 2.5 feet from my house

(Appendix -72- to -75- ). His claim is false base on

lower court findings.

The motivation for Mr. Jamil Uddin spends much

higher cost to fight than simply move the fence

posts is adverse possession (Appendix -79- item 1).

He is intentionally cross the property line. Note:

Complete rebuild whole fence about $1000 labor,

$510 posts, $1600 panels. Quote from 2 companies

and Home Depot.

‘The fence post is inclusive component of fence. The

fence function is declaring the boundary and

ownership of the land. The adverse possession will

legalize the ownership of that 2+ inch land. My

25.00 feet wide land will reduce to 24.83 feet.

6. I explain technically what the de minimis is. |

also provide additional evidence of damage and

statutory provisions (Appendix -20- item 7 and 8,

-26- Fences). The lower court refuse accept the

basic science and logic. The lower court insist the

invader occupies neighbor’s land and the owner

cannot use his own land are not evidence of

damages.

I request clarification for understand court decision

but it denied. I do believe the clarification will

overturn the decision (Appendix -23- line 26 to -31>).

My land occupied by Mr. Jamil for free and the

lower court imposes the cost to my case! Where is

the truth and Justice?

All new construct has to respect to the property line.

At this point everything is crystal clear. Only Mr.

Jamil still tries to fool court of appeal by lying

against existing court document. (Appendix -8:

item 6, Appendix -39- item 13). His lawyer

Mr.Golden does not deny any allegation only

emphasis de minimis and no statutory ( Appendix

13-, -97-).

oe

Reasons for Granting the Petition

In short:

Let Mr. Jamil’s fence post continue to occupy my

land is unconstitutional. I have right to restore my

fence.

1. The nature function of fence is to declare the

rahe yg and ownership of the land. Holden v.

Crolly, 153 AD 254, 1 a N. Y.S 23(2d Dep’t 1912) and

McM: A Yoon Vv. + aot ) Misc 233,287 N.Y.S. ‘861

(Sup 1929). You i dudes your property line is

inside of other people’s fence post. Fence is

exclusively takes the land.

Mr. Jamil’s fence posts cross property line 2+ inches

He is physically takes that 2+ inch land for free and

becomes practical land owner. The lower court

decision let Mr. Jamil continue to occupy my land is

unconstitutional.

The private property is protected by Constitution

and law (e.g. Bill of the rights amendment 5). Even

the government cannot take private property foi

free. That 2 inch is my land. I have the right to use

it.

lt is common sense. The owner has the usage right

(Bill of the rights amendment 9). When you borrow a

pen, you need ask permission. If the owner says NO,

you cannot take the pen. You cannot say it is de

minimis encrvachment.

The Constitution does limit the property on size and

value and does not ask prove of damage. The only

thing needed is prove of owner ship. In fact fence

invasion is a damage of ownership

If invader exclusively occupies the owner land then

it is unconstitutional. Even one fence post occupies

my land is unconstitutional. How hard to move one

fence post if it is truly only one post.

The United States Supreme Court system is the final]

place for people seek Constitution rights protection.

2. Intentional fence encroachment is no difference

from street robbery. The invader knows where

property line is and knows it against the owner wish

Invader knows what he is doing

The exhibits of agreement and the photos are clearly

indicates Mr. Jamil is intentionally cross the line

You can see how we fight start trom clean sidewalk

(2.6 feet away from my house) until complete fence

You can see how Mr. Jamil destroys the property

stamps. Even I called police cannot stop him

Recall the altered agreement (Appendix -70-). M1

Jsamu try fool the court the property line is in center

of the retaining wall or curb. The retaining wall (my

side is a curb) is 5.5 inch in my side and 2 or less

inch in Mr. Jamil side (Appendix -64- Exhibit M

orange color is the property stamp). He knows what

he 1s doing

The reason I do not take down his fence immediate

by force is I think the court will support truth and

justice. | am master in science and engineer I know

technically impossible to prove that 2+ inch land

belong to Mr. Jamil

Kven base on Albert A. Bianco's survey ( Appendix

72- to -75-, Exhibit C) Mr. Jamil still cross the

property line by 1 inch. Mr. Albert A. Bianco is an

engineer. He knows he cannot make a survey 2+

inch over but he do not know the trick he playing

also impossible in measurement theory. ( Appendix

*83- item 7)

The second Mr. Jamil’s survey (Appendix -76-,-77

Exhibit D) agrees with all my 4 surveys. My house 1s

2.6 feet away from the property line. That is why

lower court confirms the encroachment is 2 inch. Mr

Jamil knows it before we go to the court.

Mr. Jamil is intentional use new fence encroachment

for declare land ownership (Appendix -68-, item 12 to

19) He made his point several times very clearly his

fence is complete in his property. (Appendix -G68-,

items 14, 17, 18, 19) Fie is intentional get free land

from my side

All my legal expenses are directly due to Mr. Jamil’:

encroachment He should bear with the

consequences of his action

3. Allowing one private homeowner using fence de

minimis method to encroach to another private

homeowners land is wrong The lower court

decision impacts to all America homeowners

All American need aware of the court allows fence de

minimis encroachment to their property. If | know |

will use force take it down before it completed

[f you truly believe everyone created enquire you

know every homeowner will have the right to use

fence encroach to the neighbor by this decision. The

fence de minimis encroachment should not allowed,

it will increase land encroachment cases, especially

for people want get more land in crowd city. None

should encourage getting free land from neighbor.

The tence de minimis encroachment plus adverse

possession becomes legal land robbery tool. You

cannot deny the nature function of a fence. The only

way avoid adverse possession is no fence

encroachment allowed

lf court allows use fence de minimis encroachment

method to becomes practical land owner. People may

satisfy become practical owner. The adverse

Q

possession is not necessary. The United States

Supreme Court need look into this legal issue.

The de minimis or adverse possession may be for

historical object which the ownership practically

executed for many years. New construction utilize

fence de minimis encroachment method to get

neighbor’s land should never allowed.

4. The term “de minimis” needs quantitative

measure. From the decision it means the things are

so small can be ignored so court does not take action.

The big or small is relative concept when talking

about land/survey it is the half minimum unit in the

survey which is 0.005 feet. You can find in all survey

the land is 25.00 feet in width. Any thing bigger than

0.005 feet changes the number in survey. Any thing

less than 0.005 feet then it 1s true de minimis.

Two inch is not small for my 2 inch fence, 2.6 feet

walkway and 25 feet land width. I ask lower court

about the quantitative measure of de minimis.

Request denied. Clearly court cannot give

quantitative measure. The measure will show the de

minimis claim is false. More in appendix -22- item 10.

Without quantitative measurement you can say any

thing is de minimis. The United Supreme Court need

look into this ensue for insure judgment accurate

and unified. The de minimis’ should have

quantitative measure.

5. The lower court decision base is improper. None of

cases is fence encroachment. None of case the

defendant declares land boundary/ownership and

can trigger adverse possession. Most of them are

maintenance for old object.

10

Wing Ming Props. [U.S.A.] v Mott Operating Corp..,

79 NY2d 1021: The air- right is not real property, no

encroachment and the land ownership is not affected.

It is old air conditioner replacement.

Hoffmann Invs. Corp. v Yuval, 33 AD3d 511: It is

rebuilt retaining wall. It is maintenance of existing

object.

Generalow v Steinberger, 131 AD2d 634: It is

driver way and retaining wall. No info on new build

or repair.

Robert v Kohs, 35 AD3d 178): Restore exterior and

has nothing to do with land.

The key difference is the nature function of new

fence is declares the land boundary and ownership.

Mr. Jamil is demanding the land. He is intentionally

takes down my fence and build his new fence for

declare land ownership (see above reason 2).

The retaining wall has complete different nature

function. It is beneficial to both sides. It protects

high ground side foundation (my side). As long as the

property line is some where inside of the retaining

wall and Mr. Jamil's fence not cross the property line.

I can restore my fence on top of the curb.

If the retaining wall may serve as land boundary,

then encroachment will be 5.5 inches. But if my

fence restored on top of it, the retaining wall will

divided by fence. So my fence has to be restored.

The purpose of ruling examples is try support the

correctness of the decision. But incorrectly use ruling

example only show the decision is incorrect. Private

lawyer try fool the court by using incorrect ruling

example to enhance his argument but the court need

aware of it.

1]

The previous ruling only means some one give up on

that court level and does not mean it is

Constitutional. NO previous ruling, state or local law

can overturn the Constitution. The Constitution

right should protect in all level of the court.

6. People go to the court expect for get truth and

justice to be served. The fence encroach to

neighbor’s land case is very popular. The key issue is

the Supreme Court support invader or support

property owner?

Mr. Jamil is intentionally put his new fence cross the

property line. The lower court decided let invader

continue to occupy my land for free and impose the

cost to the case is extremely unfair.

Limited English should not be a burden for get fair

judgment. The Knowledge of statutory provisions is

not. required for people get fair judgment. The truth

and justice should serve without requirement of

expertise.

7. Every one should bounds to signed agreement.

The original agreement paper which I present at

court room is still valid. There is no reason the fence

posts cannot move. If it is true de minimis why

cannot execute the agreement?

ry

he fence posts not cross the property line is basic

responsibility it should enforced even no agreement!

8. Initially I think may be court do not understand or

misunderstand my English or the way I presenting

things. But I am sure my written English is

understandable.

12

It appears to me the lower court refuse accept very

basic common sense. I think the amendment nine

covers people’s commonly believe.

Mr. Jamil spend much high expense then simply

move his posts and conlinue fighting is for that 2

inch land ownership. I spend more than $4,500 move

case up to here is for my Constitution right, usage

ie and the ownership.

It is physically impossible restore my fence without

remove Mr. Jamil’s fence posts out of my land. Insist

no evidence of damage i is practically wrong.

Our civilization and culture are built on top of basic

sclence and common knowledge. The lower court

decision makes me recall a parable about a wolf

wants eat sheep. The lower court decision directly

impact to people how to view of the Supreme Court

system.

Base on Constitution I have right to ask public trial.

In internet age, we can post all original documents

to web let people vote.

Conclusion

Nothing is more valuable than the Constitution. The

vinyl fence need move out. Even the gold, diamond

fence need move out. The Constitution is the

foundation of our country.

Private property can not protect. by Constitution and

court 1s against America people believe.

The lower court decision shakes the foundation of

the United States.

l ask The United States Supreme Court step in for

insure America people get Constitution protection

and do not let America people becomes victims of the

Court system mistake.

The petition for a writ of certiorari should be granted

Respectfully submitted,

S/ Zhuang Li Cai

9934 67rd, apt 1A

Forest Hills, NY 11375

718-897-5751

oe

Index of Content

In Court of appeal:

SPOUERE OF TURE NNORE-* 6+ 88000800888 e net eneen ese =

Motion of Reargument----- PeR ER AA ARONA NS SR ERE AEE a

Opposition of Reargument-------****--->--7> “13°

Denial of move to Court of appeal------------------- -14-

Motion move to Court of appeal---------+-+***++---> -15-

Opposition on move to Court of appeal------------- rf fe

In lower court:

POS CORTE GOCIRIOIN Ot tn ene ere nse ese nese exees econ, -41-

Appellate division decision’------------**77777t 77777" *43°

Initial motion in Queens Court-**-*7**>-77 00077 r -45-

Respondent initial opposition---*---**+>-->7--0777>> “66°

Petitioner brief------ poe EROXERSSRETE RSS SRERASS eeeavenswes -79-

ne.” gilda hahaa ta dhe edeeha oleate *93°

POCHMee WORRY DHNRT $< 8808 88st terre erent nese saeseees -98-

Transcript and court room exhibit-------------> -104-

Format note:

1. Areference mapping created for each document

original reference at end of each document. “->”

means map to.

2. Partial survey enlargements created for easy

reading.

3. Photos are not printed in color but can submit in

color if required.

4. Inserted separation line for easy identify where is

the copy of document inserted.

5. Due to | speak broken English and accent,

transcript full fill errors. It does effectively covers

the key issues I want present at that time. Do not

confuse. Those errors are irrelevant; the later

documents have more accurate description.

6. Some files are through OCR process. Even I do my

best to verify them, there is possible few error exist.

In case dispute the original copy can be reference.

Denial of reargument

State of New York Court of Appeals

At a session of the Court, heid at Court of

Appeals Hall in the City of Albany

on the sixth day of April, 2010

Present, HON. JONATHAN LIPPMAN, Chief Judge,

presiding.

Mo. No. 2010—240 In the Matter of

Zhuang Li Cai, Appellant,

Ve

M.D. Jamil Uddin, Respondent.

A motion for reargument of motion for leave to

appeal to the Court of Appeals in the above cause

having heretofore been made upon the part of the

appellant herein, papers having been submitted

thereon and due deliberation having been thereupon

had, it is

ORDERED, that the said motion be and the

same hereby is denied.

S/ Richard A. Reed

Deputy Clerk of the Court

Motion for re-argument in court of appeal

STATE OF NEW YORK

County Clerk Index No.:27891/2007

Zhuang Li Cai

v.

M.D. Jamil Uddin

Base on support officer suggestion the arguments will

around possible over looked and misapprehended issues.

|. The root of the fact is Mr. Jamil intentionally take down

my fence for occupy 2+ inch of my land. | ask court for

protect my land. It is my constitution right. All other issues

are subsequences from this root. The arguments on all other

issues do not change any thing for the root fact and may not

need over looked.

2. Mr. Jamil’s opposition argument page 2 item 10' “the

Supreme Court merely decided that there was no

encroachment or ...... * 1s a lie.

The Queens Supreme Court finds “the posts to the fence

extend beyond the property line.”

The Appellate Division confirmed “the alleged

encroachment onto appellant’s property consisted of one

or more fencepost intruding onto the property by

approximately two inches.”

The word “more” covers many posts reached the 2 inch. In

fact ali posts extend beyond the property line. More

accurate speaking fence posts cross the property line from |

3/4 inch to 2 3/8 inch. The reason I say 2+ not 2 3/8 is for

easy identified by Appellate Division. For same reason | say

the fence post not the fence penal. The photos are the

evidences.

Mr. Golden accepted encroachment fact and made no

argument on 2 inch measure. There is no point to argue

“no encroachment” and no point to argue encroachment

is less than 2 inch.

i reinsert RECORD page 29 Exhibit N here in black (Print

Out).

BEST AVAIABLE COPY

3. The “de minimus” does not give Mr. Jamii the right to

occupy my 2 inch land.

The de minimus means so small which can be ignored.

Look at the “Wing Ming Props. |U.S.A.] v Mott Operating

Corp., 7INY2d 1021” case. The new model of air condition

does not counted in air right calculation.

In land survey the “de minimus” is a half unit of the

smallest measure unit such as 25.00’ ( is foot) in 5 out of 6

surveys in RECORD (The right most 0) which is 0.005 foot

= 0.06 inch. Any thing smaller are ignored. The amount of

“de minimus” should not have any contribution to the

survey otherwise it cannot ignore.

If you still do not understand what that means, you can

think 24.99’ is obvious different from 25.00’. The survey

never can be marked as 25.01” or 24.99’ the width is defined

by New York City. The right most digit is remarkable

number cannot ignored. Any thing bigger than 0.06 inch

changes survey and cannot ignore.

Do not confuse with the MAX measure error '4 inch = 0.25

inch which | explained at my BRIEF. The MAX measure

error may happened when measure whoie street block. Start

at the first house then next when reach the other end of street

may be the error cumulated. In this case the surveyor will

adjust it.

or example the whole street block has 5 houses. Each

house adjusted 0.05 inch which is less then 0.06inch the last

house error will below 0.06 inch. This is just theory in real

world look the 5 of 6 surveys the property line is 2.60 feet

away from my house. That number measured cross 50 years

and made by 4 different surveyor companies.

The reason [ ask court what is the guide line of the “de

minimus” is I know the answer will over turn court decision.

The 0.06 inch de minimus variation is hard to identify and

no way to do Adverse Possession and no one wants spend

money on tt.

2 inch is 33 times big than 0.06 inch and 8 times big than

0.25 inch

There is no point to argue 2+ inch belong to “de

minimus” or not. The “de minimus” does not give Mr.

Jamil the right to use my 2 inch land.

4. In case you still not convinced, | ask you to be my

contractor to build my fence along the property line which is

2.60 feet or 2 feet 7 4 inch away from my house. Not like

the surveyor use optical equipment you use tap ruler, Can

you miss the position by more than the smallest unit 1/16

inch = 0.0625 inch? You eye cannot identify it is 1 unit

missed?

Along 100 feet there may be 25 iron posts, if you just

missed few posts by 1/16 inch I can accept your work. That

is the de minimus variation mean. Please notice your miss

only inside of my land, you will not miss encroach to

neighbor side. You know other side ts not my property

Now I ask you build my iron fence along 2 feet 7 “% inch

property line but Mr. Jmail’s fence posts encroached into my

land by 2 inch. Can you still do the work? Look at reinserted

RECORD page 29 Exhibit N above. What you need is take

down all Mr.Jamil’s fence posts which block your way. That

is the evidence of Mr. Jamil’s fence post altered or

impeded the use of Mr. Cai’s property. Judge that is why |

bring Mr. Jamil to court for.

5. | think the reason of deny my motion move to court

appeal may be I| use strong tone against court decision. That

should not be misapprehended. It is my true feeling. One

court officer toid me that he 1s house owner he understands

my frustration and anger. Judge if you owner a small house

in very crowded Queens you will know how valuable that 2

inch land. Every one tries to build as big as possible house

with in limited width. Aggressive owner try hard to encroach

to neighbor’s land thai is exactly what happed in my cass

My peaceful life is destroyed by Mr. Jamil’s invasion

a. Work: I go to work late because | have to wait on site for

police arrive to stop Mr. Jamil take down my fence. | go

home early | need take picture before too dark. | need leave

work at middle of day to meet surveyor. | spend many hou

in the law library which is only open at week days. I have to

use my vacation days

b. Family: | cannot have more time to bring my kids to park

| cannot spend more time help my kids learning. My wife

blame me why not spend $2,000 to hire a lawyer. | explain to

her it is a principle we do not have to spend money

because other people’s fault. [he lawyer fee is not cover

by court judgment. But each time my motion denied sh

always blames not hire a lawyer

c. Time: I! have no law education background. | have to lean

every thing from ground. My English is poor. Lach

document i need write many times for other people can

understand. Some times I need spend many hours to get spell

correct. Because of my accent, the Microsoft Word does not

come out right words. | may misuse words which the

dictionary translation is misleading or due to culture

difference.

d. Finance: | have to allocate necessary fund to push cas«

move forward. In economic down turn this brings more

burdens to my live. | have no choice that 2

important for keep the integrity of the house

inch 1s very

More important is mentally suffering. All above are

consequences of Mr. Jamil’s encroachment. At beginning

it is not so sharp. Alone time goes by it become sharp issue

in my family. Judge do you think | need suffer all thi:

painful process? My peaceful life is destroyed by Mr.

Jamil’s encroachment. That is why my tone is very

strong. This is a fact.

6. Mr. Jamil claims | raise new tissues in my motion. Mr.

Jamil lies against existing court documents. |lere from a

to e. matched Mr. Jamil’s Opposition a. to

a. Adverse Possession: In RECORD page 19 initial motion

item 9.” I descript the law of Adverse Possession but | do not

know the name. In RECORD page 79 TRANSCRIPT line |

lo page 80 line 4 ' The Judge speaks out the word “Adverse

Possession”. Along the court process | am improving t

understanding and description

b. The removal of a prior fence was improper: On

\ppellate my BRIEF page 2, item 47, | clearly state “When

Mr. Jamil wants take down the front part | called police for

stop him.” | called 911 which is recorded can be verity b

court. No need to arguc

¢. Asking finance damage is not new tissue: In my motion

to court of appeal, | raise it to $7,500 for cover court of

appcal cost. It 1s on front page of the motion and page

item 9°

[he $49,000 1s suggested amount, IF court of appeal

considers impose punitive damage. This is in motion to court

of appeal page 22 item 2 second last parapraph

Finance damage requirement never be a burden for

truth and justice. [t should not be a burden of fence posts

remove. A note posted in Queens Supreme court pro sell

support rooni said the judge will reduce the amount you ar

seeking for

d. “two inch (2”) encroachment created further safety

hazard”: this is in Appellate division my BRIEF page | item

|. last 3 lines.” | clear stat that “As | know, the minim safety

requirement for the walk way ts 32 inch=2.66 fcet

With the help of building department officer [| find th

rclated code in their web site. | know my house is designed

to maximized use the land. So that any reduce the width will

create safety problem

C‘urrent code for exit pathway ’ 6 inch. My pulhway

$1.2 inch 1s already not meet current ifety code. If th

pathway encroached by 2 inch then the width becomes 29

inches or smaller. Any attempt clam 29.2 inch is not mor

damayver than 31.2 inch just undermines people's IQ

e. Property tithe becomes “unmarketable”: [he property

valuc issue ts raised by Queens Supreme court's decision. In

my BRIEF page 14 item 16." I clearly state the encroachment

“greatly reduced the property valuc’’. It is common sense; the

encroached property never has same value as not encroached

In Mr. Golden's REPLY BRIEF page 3 item “Value of

property ” also arpue that | offer no evidence to support

yreatly reduce property valu

Now here it is. It proves encroachment damave th

property title and becomes unmarketable. A law library

assistant finds that if the property not clears of encroachment

the property title 1s unmarketable. She told me that the front

part is the conclusion; the index is the law and previou

ruling example. | copy whole section in to my motion. |

added my comment at end to prove what | said in my BRIE

iS (ruc

Argue on my property value issue docs not give Mr

Jamil the right to occupy my land

7

Phink it logically

Why Mr.Jamil spend much more money than move his

new fence? rom photo you can see we start fight belore

fence is up (RECORD pape 25 Exhibit F''). He has no deny

on it ts intentional encroachment. He spends money for

surveyors and his lawyer ts just for de minimus’

Why Mr. Jamil provides to court with altered

document, suspicious survey and lie to the court”

)

Ihe motivation its using Adverse’ Possession — t

permanently chanve that 2 inch land ownership. Please check

my BRIEF pave t'* “the center of the fight

lf the de minimus variation ts smaller than 0.06 inch then

is hard to prove it in the court, no way to chanve the survey

and the Adverse Possession become useless. 2 inches 1s bip

cnough casy to prove in the court, can chanpe the survey

and proceeding to the Adverse Possession. Appressivi

- 10-

people will ask court to adjust the miner difference in the

survey to reflect the truth of occupancy.

The lower court does not give any quantitative number to

define the de minimus measure. It could be any arbitrariness

number then no truth and justice can be severed. Further

more it opens the door for endless encroachment case.

Everyone can encroach to other people’s land and declare it

is de minimus.

8. Focus on the fence posts remove arguments.

1 write this section is for fresh review and avoid early

arguments distract the key issues.

a. All Mr. Jamil’s fence posts have to move out of my land.

It is my constitution right to protect my property.

Following are subsequences.

b. All new construction has to respect the property line.

There is NO exception.

c. I need rebuild my iron fence along the property line all Mr.

Jamil’s fence posts which block my fence path need

complete removed from my land.

d. The de minimus will not give the Mr. Jamil the right to

occupy my 2 inch land. 2 inch is not belongs to de minimus

in land survey which is 0.005 foot = 0.06 inch. 2 inch is not

de minimus in any comparison in this case (2 inch my fence,

31.2 inch exit walkway and 25.00 feet land)

e. My property value issue does not give Mr. Jamil the right

to occupy my land. Clear of encroachment is requirement for

a marketable property title. This is professional conclusion in

court library document.

i

f. Currently the New York building code §[C26-601.1} 27-

357 Exit requirements: the Residential exit corridor not !ess

than 36 inches. Further reduce my 31.2 inch exit walkway

bring more safety hazard.

. Mr. Jamil still insists “there was no encroachment”. His

i nce posts are on his land. He still tries claim that my 2 inch

land is his property. It is clear the Adverse Possession is his

motivation.

9. Words to court of appeal:

I already provide court of appeal the decisions, RECORD,

my BRIEF, Mr. Golden’s REPLY BRIEF. It is not too hard

to find Mr. Jamil lie og existing documents. If I do not

have chance to replay Mr. Jamil’s opposition then this court

need verify who say the truth. This court need provide each

judge related documents.

| do believe when people select to be a judge as a career,

people want serve for truth and justice. But without proper

resource judge cannot find the truth.

Due to different major or education back ground or culture,

It may little hard to understand what I said but | did in

mathematics and logical way so that with concept of number

and little thinking. My arguments should understandable.

This is my entire guess why motion denied. It may be just |

raise too many issues. Without formal help it is just the best

guess.

This is the last page of motion.

Date: February 8, 2010 Signature: S/ Zhuang Li Cai

Reference mapping:

! opposition argument page 2 :tem 10 -> -38-, item 10,line 6

2opposition to move to court appeal a. to e. -> -39-, item 13

3 RECORD page 19 initial motion item 9 -> -47-, item 9

4In RECORD page 79 TRANSCRIPT line 14 to page 80 line 4

“> -137-; fine Zi

5 BRIEF page 2, item 4, -> -80-, item4 first paragraph.

6 It is on front page of the motion and page 11 item 9 -> -22

item 9

page 22 item 2 second last paragraph 32-, item 2, 4th

paragraph.

79-item

SN . . >

Appellate division my BRIEF page | tftem |, last 3 lines,

| last 5" line.

9 ws - : oO . std

my BRIEF page 14 item 16 -> -88-, tlem 16, 3° paragraph

10 ; ae yah ; =

~ REPLY BRIEF page 3 item, -> -95-, “Value of property

'' RECORD page 25 Exhibit F -> -57- Exhibit F

»-79-, item 1, “The center of the fight”

“ my BRIEF page | -

Ske

Opposition of reargument

STATE OF NEW YORK COURT OF APPEALS

Index No.: 27891/97

ZHUANG LI Cal Petitioner

“against -

MDJAMIL UDDIN Respondent

STATE OF NEW YORK)

) SS.:

COUNTY OF QUEENS)

Richard N. Golden, an attorney at law licensed to

practice in the Courts of New York State, under

penalty of perjury affirms:

1. | am the attorney for Mohammed Jamil Uddin

and familiar with the facts and circumstances herein.

2. This Affirmation is respectfully submitted in

Opposition to the Motion to Reargue the Application

for Leave to Appeal.

3. The Application of Mr. Cai fails to set forth any

matters of fact or law allegedly overlooked by this

Court in its decision to deny the Application to

appeal the decision of the Appellate Division.

4. Mr. Cai appears to be offering his personal opinion

and fails to provide either statutory or case law to

refute the opinions of the Honorable Charles J.

Markey and the unanimous opinion of the Appellate

Division.

WHEREFORE, it is respectfully requested that the

Motion be denied and for such other and further

relief as this Court deems just and proper.

Dated:Forest Hills, New York. February 27, 2010

S/ RICHARD N. GOLDEN Attorney for Respondent

a

Denial of move to court of appeal

State of New York Court of Appeals

At a session of the Court,

held at Court of Appeals Hall in the City of Albany

on the twelfth day of January, 2010

Present, HON. JONATHAN LIPPMAN, Chief Judge,

presiding.

Mo. No. 2009-1210, In the Matter of

Zhuang Li Cai, Appellant,

v.

A motion for leave to appeal to the Court of

Appeals in the above cause having heretofore been

made upon the part of the appellant herein, papers

having been submitted thereon and due deliberation

having been thereupon had, it is

ORDERED, that the said motion be and the

same hereby is denied.

S/ Stuart M. Cohen

Clerk of the Court

me

Motion for leave to the court of appeal

and for additional case expense $2,500.00.

STATE OF NEW YORK

County Clerk Index No.:27891/2007

Zhuang Li Cai

- against -

MD. Jamil Uddin

Questions presented

Note: “The court” in following sections will refer to

Queens Supreme Court, and Second Judicial

Department.

1. Mr. Jamil takes down my fence build his vinyl

fence and intentionally cross the property line by 2+

inches. Queens Supreme Court, Second Judicial

Dept and Mr. Jamil lawyer Mr. Golden

acknowledged that I am the owner of that 2 inches

land. Mr. Golden has no deny of Mr. Jamil is

intentionally cross the property line.

The Queens Supreme Court decision let Mr. Jamil

continue to occupy my 2+ inches land and the Second

Judicial Dept imposes cost to the case.

Very clearly I should have the right to use my 2+

inches land, Mr. Jamil’s fence need move out of my

land. America law should protect private property.

The simple question is why Mr. Jamil has superior

right over the land owner me to put “one or more”

his fence posts on my land? Why I cannot put my

fence on my land?

Playing words does not change the fact. The truth

is all fence posts cross the property line. I have to cut

down all of them for build my fence. Mr. Golden

claims only 3 fence posts cross by 2 inches (“Replay

brief’ respondent brief page 1!). Do you believe all

other fence posts jump back by 2 inches? Arguing

-16-

how much does not change the fact. Mr. Jamil

occupies my land.

2. The decisions from lower court and Appellate

Division are unconstitutional.

Both court identified Mr. Jamil Uddin’s Vinyl fence

encroach my land by 2 inches.

Both courts emphasize the encroachment is the de

minims.

Both courts insist there is no evidence of damage.

The Constitution right for protect private property

does not limited by the size/value of the property and

does not request owner to provide the evidence of

damage for getting the property back.

2+ inches is not de minims for my 2 inches fence

and 29.2 inches walkway.

My land exclusively occupied by Mr. Jamil and |

cannot build my own fence is the evidence of damage.

I am the owner of that 2 inches land. I have the

Constitution right to protect my land and use my

land. The Mr. Jamil’s fence posts are temporally

structure and easy to move. He has NO right to use

my land.

Previous ruling example cannot over write the

Constitution.

3. “All men are created equal’.

If the court let Mr. Jamil use force take down my

fence and encroach to my land 2+ inches, I should

has same right to take down Mr. Jamil’s fence and

encroach to his side by 2+ inches.

The court let Mr. Jamil has superior right over the

land owner me then the decision is evidence of

discrimination in the court system.

Deny my request for clarification is discrimination

to the people who does not have lawyer and unable

to fully understand what court decision mean and

consequences.

me i

New York state law not allows judgment reward

lawyer fee then it should create environment fairly

to Pro self. Everyone should treat fairly in the court

regardless their occupation, education. I am not a

lawyer. I think the decisions are illogical. I have the

right to get clarification. The court should not take

advantage of my major is not in law. I need to know

what happened for this out of law decision. May be

my English is too poor? May be the way I present the

facts not meet court requirement?

I was forced to have very short time (4 day

compare to 15 day) to Answer Mr. Richard’s “REPLY

BRIEF” due to I never receive his “REPLY BRIEF’

on mail. I have to pickup his “REPLY BRIEF” from

Mr. Richard Office after 5 PM on Dec 5 and mail out

on Dec 9 at 8 PM in New York center Post office for

meet court date.

In general, the court intend to discriminate people

does not have lawyer. Put them in unfair condition

such as how to mail, how to pay and even the seat in

the court room.

The court did not say Mr. Jamil Udin is supper

class man but let he has superior right to continue

occupy my land. The court did not say I am lower

class man but take away my 2 inches land usage

right.

Clearly not everyone can use force to occupy other

people’s land.

Clearly NO one should have right to occupy other

people’s land.

Clearly this 1s discriminate ruling.

4. My peaceful life destroyed by Mr. Jamil’s new

construction encroachment. The court supposes is

the place for protect people from unlawful invasion.

This is simple case. This is new construction.

The court function is keep fair, truth and justice.

Now what side the court stands for? The court.

decision directly supports exclusively encroachment

» 8

in new construction. Where are fair, truth and

instice?

[ feel I catch a robber and the police not only iet the

robber keep the money and impose a fine to me. No

question that police will be in jail. .

In my view the America court system totally lost

their reputation.

The court support invader or protect private

property?

5. The court knows Mr. Jamil intentionally cross

the property line is for utilizing the New York state

law “Adverse possession after expiration of statutory

period.” The fence posts are the inclusive component

of the fence and can be substantial enclosure in the

adverse possession. Any attempt to declare fence

posts not belong to fence are just like declare you leg

not belong to you.

Look fence posts encroachment brings in the facts.

A. Actual ~The court confirmed Mr. Jamil’s fence

posts encroaches my land by 2 inches.

B. Open & Notorious — Mr. Jamil’s fence not only

cross the property line it also has 2 red mark “in

line” on two of the fence posts for claim that 2 inches

is Mr. Jamil’s property. Everyone can see the fence.

C. Exclusive — Fence posts are exclusively occupied

my 2 inches land so I cannot build my fence.

D. Hostile — Hostility exists where a person

possesses the land of another intending to hold to a

particular recognizable boundary regardless of the

true boundary line. That is, exactly what Mr. Jamil

wants to claim in lower court position of motion

(Record page 40 item 14?)

E. Under Cover of Claim or Right - Mr. Jamil claims

his fence is inside of his property and produces

suspicious survey to support his claim of right.

All Mr. Jamil missed is the 10 years statutory

period. The court decision directly supported Mr.

Jamil take “Adverse possession” to get my land.

Let Mr. Jamuil’s fence posts continue to occupy my

land 1s absolute not acceptable. | am the owner and

effectively proved to the court that 2 inches is my

land. Now is New York court responsibility to ensure

my land will not be adverse possessed! All Mr.

Jamil’s fence posts need move out of my land.

The court knows the viny] fence is screw mounted

panel on the post. The court knows both side spend

much more money than shift fence posts. The court

know both side is fight for ownership of that 2 inches

(now and future). The decisions only confirm I am

the owner of that 2 inches land now. But it take

away my usage right by let Mr. Jamil’s fence

continue to occupy my 2 inches land. This is

violation of the Constitution and creates future

ownership issue. The Second Judicial Dept just

denies clarify on this.

I am the owner of that 2 inches land. I have the

right to use that 2 inches land. Mr. Jamil does not

have the right to use my land. Move all Mr. Jamil’s

fence posts out of my land.

6. Who has the right?

I am the owner of that 2 inches land. Base on NY

CLS RPAPL §871, I can remove everything on my

land and build my fence. I do not need ask court

intervention. The reasons I ask court take action are

a. I want peaceful accurate remove. Mr. Jamil can

unscrew his vinyl fence and reassembly after move

the fence posts. Even the court supports Mr. Jamil

encroach to my land I have NO intention to encroach

into his side. I do believe court decision violate the

law and create endless fight.

- 20 -

b. All my money spent on this issue need rewarded.

There is NO reasun for me to spend any money on

Mr. Jamil’s invasion. Due to the nature of Mr. Jamil

intension I have to precisely rebuild my fence

Mr. Jamil has No right to take down my fence. Look

at Record page 26 Exhibit H' and Exhibit I‘, you can

find my old chain fence is inside of my land. Mr.

Jamil takes it down even after I called police. Look

at Record page 465 and page 106 Exhibit D®, the back

part of my old chain fence which was partially fell

due to Mr. Jamil’s new construction digging the

foundation. I agree to remove my back part of chain

fence with condition not cross the property line. |

give Mr. Jamil 30 day’s notices to move his fence

back before I start bring him to the court

7. 2 inches encroachment is substantial and created

further safety hazard.

“E’ncroachments on the _ street by ornamental

projections on an apartment house from 1% to 2%

inches 1n the City of New York were held to make an

unmarketable title, although under the building code

of the city such ornamental projec tions” were not

more than 2%% of the width of the street.

6 Lencrif Realty Corp. v. Csppelan. 220 AD. 828, 222 NYS

842. ajfd. 247 N.Y. 566. 161 NE. 184. (1921)

«c

Clearly 2 inches are not de minims. If my walk

way lost 2+inches then it is less than 29 inches. It is

4% short.

My walk way is the safety exit from second floor

and first floor to back yard to street. Currently the

New York building code §[C26-601.1] 27-357 Exit

requirements the Residential exit corridor not less

than 36 inches. The court decision created further

safety hazard

1 am the owner of that 2 inches land. I have the

right to use that 2 inches land. Mr. Jamil does not

have the right to use my land.

8. Kncroachments make property title nmarketable

“Marketable title is a good title, one that 1s free

and clear from incumbrances and encroachments o1

from material defects in the title; one which, with

reasonable certainty, will not be called into question,

and which can be readily sold to a reasonabl;

prudent purchaser or mortgaged to a person of

reasonable prudence as security for the Joan of

money. “

' Crocker Point Ass'n v. Gouraud, 224 N.Y. 343. 120 NEA

(1918); Heller v. Cohen, 154 N.Y. 299.48 NEL 527 (189

Pyramid Motor Freight Corp. v. Thorman Baum & Co., //4

N. YS. 2d 614 (Sup, Ct. N.Y. County 1948). See also Vanderwor!

Vv. Higginhotham, 222 A,D.2d 831, 634 N.Y.S.2d 800 (3d Dep't

1995), Caselli v. Messina, 148 Misc. 2d 671, 567 N.Y.S.2d 9;

(2d Dept 1990). alfd, 193 A.D.2cl 775, 598 N.Y.S.2C1 265 (2d

Dep't 1999). ~

The court confirmed there is encroachment exists

So the title is unmarketable. It is common sense

Encroached land will not have fair market value.

Occupy other people’s land then ask for prove of

damage in property value is like a robber rob $1 and

ask plaintiff for prove “monetary damages” in th

court.

[ am the owner of that 2 inches land. I have the

right to use that 2 inches land. Mr. Jamil does not

have the right to use my land.

9. Mr. Golden never denies or objects Mr. Jamil |

intentionally cross the property” line. All my

spending need recovered from court judgment

| show the survey which | got from building

department to Mr. Jamil told him the property lin

is 2.6 feet away from my house. He rejected

| hire one surveyor put property line stamp on th

ground ($500) and hire another surveyor made new

survey ($550). Mr. Jamil destroyed the property line

stamp. Then | pay $450 for put property line stamp

on the ground again. Mr. Jamil destroys it second

Limes

! am have to bring Mr. Jamil to the court fo:

protect my land. | estimate $1,000 in court expenss

and $2.500 for rebuild whole fence

Now I ask additional $2,500.00 for the expenss

beyond lower court. The total is $7,500.00 in finance

dumayge

Please notice that I should not suffer this legal

burden. Mr. Jamil has to respect to the property ln

during his new construction

| have consulted with two lawyers both agree they

can recover my land and all expense for rebuild fenc

and court process fee. But both told me that New

York state law does not allow judgment reward

lawyer fee. My point is I should not spend a penny

on this. If New York State thinks the court system

can handle people who do not have lawyer fairly

then I should be able do if

10. The court decision is totally base less and full

fill ‘ogical errors.

The court knows the “Wing Ming Props. |U.S.A.] v

Mott Operating Corp., 79NY2d 1021” case is for

business future development air right. The court

knows the new air condition model has NO effect in

air right calculation. But the court uses it for

residential land boundary encroachment case. Thi

proves 2 things. 1. There is NO land boundary case

support exclusively de minimis encroachment ruling

The court is not base on land boundary case. lI!

air mght case can use in land boundary case then a1

illegal immigrant snake into USA 1s de minim)

The court know mall or large is relative concept

Compare 25 feet width of my land with 2 inch |

1/150. From north board of USA to south board 1

about 1,800 mile suse) on court decision both

(Canada and Mexico can take away 12 mile land fre

LISA. 1/150 1s de minimis encroachment!

Why my 2 inches land occupied by Mr. Jamil is not

evidence of damage’? l am unable to rebuild my

inches land is the damage

lence in my

lf this ruling stands then | can use this ruling take

down Mr. Jamil's fence and build my fence cro

property boundary by 2 inches. Everyone can take

down neighbor's fence and cross the property line by

2 inches. This is not joke. This is the decision ruled

Why Mr. Jamil has superior right over the land

owner me to put “one or more’ his fence posts on my

land? Why I cannot put my fence on my land’?

l attach my motion for “clarification of the decision

us part of my questions presented. There are 8 pag

with separated page number from 1] to & after thi

page

"Format: inserted copy of motion for clarification.!

mupreme Court of the State of New York

Appellate Division: Second Judicial Department

\ppellate Division Docket No. 2008-445

Zhuang Ll Cay Petitioner

ivAINS!

M.D. damil Uddin, Respondent

Dear Judge

lam not lawver. | have difficulty time to understand

the court decision. | need the clarification of the

dec} 10)T)

24

1. My ownership of this 2 Inch land:

The owner ship of the 2 Inch land (which occupied

by Mr. Jamil fence post) may changed (now and

future) by court decision?

In case Mr. Jamil declares that 2 Inch is his

property base on 10-15 years occupancy. Do I have

risk to lose that 2 Inch property?

Base on VI New York Jur 24, “Adjoining

Landowner” section 119 page 757, If Mr. Jamil’s

fence not move out of my property he can declare the

now boundary.

See attachment pages (on page 3)’.

I need clarification that I will not lose that 2 Inch

land in any time due to this decision.

2. Property owner usage right:

I can use that 2 Inch land or not?

If I cannot use that 2 Inch land, my property is

damaged. That is evidence of damage.

If it is real “no any damage” I should be able build

my new fence (2 Inch post) on that 2 Inch land, but

the Mr. Jamil’s fence posts block the path. Please

advises how I can build my fence on that 2 Inch land‘

3. Constitution right:

As I understand, protects personal property is the

constitutional right. The constitution does not

require the size and value as condition for protection

and does not require the owner provide evidence of

damage for get property back.

Is this court decision overwrites my constitution

right”

4. What is the acceptable evidence of damage?

I did not exphicitly list damage in lower court due

to | know I have constitution right to protect my

land. I do list them in my brief. I do include evidence

of damages which several court officers think are

~

good example of damages. The court decision still

says I did not. provide the evidence of damage.

Why that 2 Inch is not evidence of damage?

Why my land occupied by other people is _ not

damage?

5. My rights VS remove post cost:

That 2 Inch land is my property. All property

owners have right to use their own property. Tax

payer right allows me fully use that 2 Inch.

Mr. Jamil is not that 2 Inch land owner. He has no

right to use my land. He does not pay real state Tax

on that 2 Inch land.

Why he can occupy that 2 Inch land and block my

new fence path”?

Why all my rights cannot justify the cost (<$1500)

of remove Mr. Jamil’s fence post from my land?

6. What is the guide line of de minims?

Big or small is a relative concept. 2 Inch need

compare with some size then say it is de minims. 2

Inches are large enough for build my new fence.

7. The Wing Ming Props LTD V Mott Operation Corp

case is totally different. Attach a copy of full

document. (On page 4 - 6)8

The Wing Ming Props LTD 1s fight for air right for

future development.

The de minims is old roof 2ir condition equipment

replace by new one. NO encroachment occurred.

The Wing Ming Props LTD’s air right is not

effected due to the calculation does not related with

roof air condition equipment. They have same right

as before. There 1s NO real private property in this

Case

- 26

Viy case is totally different.

{ fight for my 2 Inch land. It is private property.

The de minims are 2 Inch of my land.

My right is damaged. I cannot build my new fence

on that 2 Inch land. The Mr. Jamil’s fence posts

block the path.

Base on what the ruling can apply to my case?

Following are attachment pages.

'! Format : copy from court library book !!

ADJOINING LANDOWNERS

§119 —Fences

Research References

West's Key Number Digest, Boundaries ~3(4)

A fence erected on a surveyed line shortly after the

land has been surveyed may serve as a monument to

control courses and distances or a subsequent survey

after the stakes of the original survey have

disappeared./

Where the premises have been bounded by a fence

for many years, the law presumes that the fence 1s

the true boundary, and will not disturb such a line,

even where it does not correspond with the line of

the premises as shown on the map according to

which they were conveyed.”

In a boundary dispute, the fact that by taking a

fence as the boundary the quantity of land would be

the same as that specified 1n the

Defendant's chain of title us significant in

determining the true line.

* Definition: A “railroad fence” called as a base line

is presumably the same as a visible stone wall at or

near the line of the railroad right of way, where the

owner was under covenant to fence the railroad and,

<ee.

ina deed eight years /ater, called for the “railroad

fence” as a boundary, which: call was repeated in

other deeds, and where no fence but the stone wall

ever existed at the place, and at the time of trial it

had existed for many years, even though it was

conceded that the wall was distant some feet from

the true line of the right of way.?

' Holden v Crolly,153 AD 254, 138 N.¥.S 23(2d Dept 1912)

Annotation References: Fence as factor in fixing location of

boundary line-modern cases, 7 ALR. 4th 53

McMahon v Morse, 135 Misc 233,287 N.Y.S. 861 (Sup 1929)

As to the period of time adverse possession must be

maintained in. order to ripen into title, see Adverse

Possession and Prescription §§55,57

3 Whitney v Dudley, 40 NY S.2d 888(Sup 1943), judgment affd

without opinion, 266 A.D. 1086, 45 NY.S 2d 725 (4th Dept 1943)

‘ Holden v. Crolly, 153 A.D. 254, 138 N.Y.S. 23 (2d Dep't 1912)

''Format: second hbrary document!!

Wing Ming Properties (U.S.A.) LTD)., Appellant, v

Mott Operating Corp. et al, Respondents.

Argued March 26, 1992; decided May 7, 1992

SUMMARY

Appeal, by permission of the Court of Appeals,

from an order of the Appellate Division of the

Supreme Court in the First Judicial Department,

entered April 16, 1991, which affirmed an order of

the Supreme Court (David B. Saxe, J., opn 148 Misc

2d 680), entered in New York County, inter alia,

denying a motion by plaintiff for partial summary

judgment, and granting a motion by defendants for

summary judgment dismissing plaintiffs complaint.

Wing Ming Props. (US.A.) v Mott Operating Corp.,

172 AD2d 301, affirmed.

HEADNOTE

Trespass -—— Continuing Trespass -— Arr Rights

Transfer of Air Development Rights

- 28

li an action for trespass arising out of the

construction of replacemeni equipment and parapets

on a rooftop adjacent to plaintiffs building,

defendants, the owner and lessees of the building

next to plaintiffs, did not trespass on _ the

development rights conveyed” to — plaintiffs

predecessor in interest in an agreement which

conveyed “all that volume of space and property”

above defendants’ building and which was intended

to increase the Floor Area Ratio (FAR) of plaintiffs

building 1n order to permit the construction of a

building taller than would otherwise be permitted

under the applicable zoning ordinance, since the new

equipment and parapets erected by defendant lessee

are excluded from the computation of FAR under the

zoning resolution; consequently, the FAR of

defendants’ building and plaintiffs development

rights are unaffected by the new equipment.

Although defendants also conveyed a property right

for plaintiff to exclusively possess the _ rooftop

airspace above therr building, no trespass on that

right was sufficiently presented to withstand a

summary Judgment dismissal as to the relief

plaintiff sought, since the variations between the

equipment existing at the time of the conveyance

and that subsequently erected by defendant to

replace it are de minimis at best, and neither

injunctive nor monetary relief is warranted since

plaintiff has failed to show that those slight

variations affected its property value in any measure.

APPEARANCES OF COUNSEL

David C. Spratkin for appellant.

Peter F. Dwyer for Mott Operating Corp. and others,

respondents.

Maureen R. Green for Bank Central Asia,

respondent.

OPINION OF THE COURT

MEMORANDUM.

.

The order of the Appellate Division should be

affirmed, with costs.

In 1973, defendants-respondents Mott, Kaplan,

Chu and Tam conveyed “all that volume of space and

property” above a building located at 5 Chatham

Square in Manhattan to _ plaintiffappellant’s

predecessor in interest. Defendants reserved the

right to “maintain the projection” of an existing

rooftop air-conditioning unit and room. Plaintiffs

predecessor in interest planned to /ater transfer the

unused development rights of the roottop airspace,

subject to defendants’ reservation, to a contiguous

building which it owned. The objective was to

tncrease the Floor Area Ratio (FAR) of the

contiguous building, thus aliowing a greater height.

In 1985, defendant Kaplan subleased 5 Chatham

Square to respondent Bank of Central Asia (BCA)

with a specification allowing BCA to “use the roof

facilities in connection with any heating, ventilating

or air conditioning equipment” and to ‘alter the

entire facade of the Building” up to the second floor

level BCA subsequently removed the existing rooftop

air-conditioning equipment and room, erected new

air-conditioning equipment, and constructed a

facade with parapet walls extending over the rooftop.

Plaintiffappellant, as successor in interest,

commenced this action for trespass, alleging that the

new equipment and parapets encroached on the

roottop airspace which was acquired under the 1973

conveyance. Supreme Court granted defendants’

motion for summary judgment dismissing the

complaint (148 Misc 2d 680) and the Appellate

Division affirmed (172 AD2d 301). This Court

granted leave to appeal.

Defendants concede that development rights were

conveyed pursuant to the 1973 conveyance. Despite

the concession, we agree with the defendants and

the courts below, which ruled in. their favor, that

defendants did not trespass on those development

rights. The new rooftop air-conditioning equipment

and parapets erected after 1985 by BCA, are

-30-

excluded from the computation of FAR under New

York Ciiy Zoning Resolition § 12-10. The FAR of 5

Chatham Square and, consequently, piainiii?s

development rights, are therefore unaffected by

BCA’s parapets and substituted equipment.

Despite the fact that defendants in 1973 also

conveyed a property right for plaintiff to exclusively

possess the 5 Chatham Square rooftop airspace, no

trespass on that right is Sufficiently presented to

withstand a summary Judgment dismissal as to the

relief plaintiff seeks in that regard. The variations

between the air-conditioning unit and room existing

at the time of the 1973 conveyance and the

replacement unit and ducts subsequently erected by

BCA, and the extent to which the newly constructed

parapets rise above the elevation plane of the

conveyed airspace, are de minimis at best. Neither

injunctive nor monetary relief is warranted. Indeed,

plaintiff has not alleged or demonstrated on the

record before us that these slght variations

negatively affected its property value in any

measure.

Chief Judge WACHTLER and Judges KAYE,

TITONE, HANCOCK, JR., Bellacosa and Yesawich,

JR.,* concurs Judge Simons taking no part.

Order affirmed, with costs, in a memorandum.

''Format: end of copy from library book!!

S/ Zhuang Li Cai, Feb 9,2009

Dated: February 12, 2009 S/ zhuang Li Cai

''Format : end of motion for clarification.!!

''Format : copy of denial of clarification!!

Supreme Court of the State of New York

Appellate Division: Second Judicial Department

M84101 E/sl

A. GAIL PRUDENTI, P.J.

REINALDO E. RIVERA

FRED T. SANTUCCI

THOMAS A. DICKERSON, JJ.

oe

2008-04456 DECISION&ORDERONMOTION

(Index No. 27891/07)

In the Matter of Zhuang Li Cai, appellant,

v.

M.D. Jamil Uddin, respondent.

Motion by the appellant for clarification of a

decision and order of this court dated January 20,

2009, which determined an appeal from an order of

the Supreme Court, Queens County, dated March 18,

2008.

Upon the papers filed in support of the motion and

no papers having been filed in opposition thereto, it

1S

ORDERED that the motion is denied.

PRUDENTI, P.J., RIVERA, SANTUCCI and

DICKERSON, JJ., concur.

KNTER:

S/ James Edward Pelzer Clerk of the Court

'!Kormat note: End of insertion!!

"Kind of Questions presented !!

Why the court of appeals should grant the motion.

1. New construction property line fight is not

isolated case. All new construction should absolutely

respect to the property line. Allowing new

construction to use de minimis encroachment to

occupy other people’s land is not only violated the

Constitution but also open the door for criminals.

Look into how Mr. Jamil provides court the altered

agreement document.

+ °¥

Look into 6 surveys percent in the court. 5 of

surveys clearly indicate the property line is 2.6 feet

away from my house. There only one claims it is 2.5

feet away from my house. The court and Mr. Golden

accepted the 2.6 feet is the property line. My

question is How Mr. Jamil get that survey? In my

brief I proved it is intentional made. What happened

behind this survey?

Allowing de minimis encroachment in new

construction will open the door for aggressive people

to encroach to other people’s land.

2. A clear ruling is more important in New York

State. There is “adverse possession” law in New

York State. The owner is responsible to bring case to

the court within statutory period. The New York

State court system is responsible to support owner

get property back.

There is multiple laws state that the fence is

substantial enclosure and used to adjust the

property line. The fence post is part of fence and is

inclusive component.

A clear ruling example is needed. The “Wing Ming

Props. [U.S.AT v Mott Operating Corp., 79NY2d

1021” case is not a land boundary fight case. It is

fight the future building air right! The court decision

has no base.

A clear ruling is needed for preventing future more

cases. In this sense, | suggest court of appeals

impose $49,000.00 punitive damage reward for

compensate my time, mental suffering and other

damages.

The only way to preventing adverse possession is

move all fence posts out of my 2 inches land.

3. The function of Court of Appeal is performing

the execution of the Constitution and the law

regardless the Judge preferences and helping people

get fair judgment from court system.

The fact is clear and the case is simple. The

decision is not variation on interpretation of the law,

not misjudgment and not lack of professional moral

issue. [t is obvious violate the Constitution and law.

From my view it is criminal. [| feel I catch a robber

and the police not only let the robber keep the money

and impose a fine. Base on every thing on the court

records I can say it is discrimination.

This kind of decision should not allow in the first

place. Let Judge preference over the Constitution

and law is non professional behaves or misconduct

for a Judge. It opens the door for corruption

This kind of decision should not allow in the first

place. It brings to plaintiff unnecessary legal burden

The aggressive invader will take chance for bet on

plaintiff will give up before final truce justice

severed

As mature court system it should be able to correct

this problem. The Court of Appeal is the place. I do

believe there is no needs go any higher.

4. New York state law does not allow judgment

reward lawyer fee then it is New York state court

system responsible to provide proper resources so

that Pro self can fairly handled.

Who needs to know the law? One of court officer

told me several times the Judge does not know the

law I have to point out which law is. I think if Judge

44

does not know the law then he is not qualified for his

job. | give Judge the truth, Judge ruled base on fact

and law. I am Pro self not expert on law and unabie

to find detail of all laws and cases fit this case

Expecting Pro self performed as a lawyer is

unrealistic. A formal legal assistant is necessary for

Pro self.

In lower court, I think all I need is prove Mr. Jamil

cross the property line. The court should protect my

personal property

In Second Judicial Dept, I point out 2+ inches land

is not de minimis for my 2 inches fence and provide

several evidences of damage which several court

officers are suggested or agreed

One of the court officers told me that he 1s the

house owner. He knows a similar case handled in

small claim court and get encroached fence move out

quick. Why Queens Supreme Court cannot do same

thing? The Constitution is different from each of the

court? Or the law is different from each of the court”?

lf court of appeal can instruct me how to do it in

Second Judicial Dept then I will follow

For example may be I need file motion to take

down Mr. Jamil’s fence and encroach to his side by 2

Inches? Due to it is exactly reverse condition. If the

motion denied then original decision also dismissed?

May be I need file motion to execute owner right on

that 2 inches land. If it denied then the denial can i:

evidence of violate NY CLS RPAPL §871

Summary

The court support Mr. Jamil continues to occupy

my land. The decision is the evidence of the court

support people use encroachment method to occupy

other people's land. It opens the door for Mr. Jami!

do “adverse possession”. It also opens the door for

aggressive people to encroach to other people’s land

That is why the court cannot answer any of my

clarification questions. The court system should not

support people to occupy other people's land

l am the owner of that 2 inches land. | have the

right to use that 2 inches land. Mr. Jamil does not

have the right to use my land. Move all Mr. Jamil’:

fence posts out of my land

Attach files for the court of appeals only as required

1. The decision and order or judgment from which |

eck leave to appeal

January 20, 2009. Appellate Division Second

Judicial Dept

2. The lower court order determination appeaied

appellate division

Mar 27, 2008. Queens Supreme Court

3. The Appellate division order denying leave |

appeal to this Court

May 22, 2009. Appellate Division Second Judicia

Dept

4. Acopy of Record and Brief. Oct 2]

5. A copy of respondent bnef. (Mistake mark

REPLAY”) Nov 10, 2008

b A COpy of reply bnef (Marked i Answe)

Replay Brief’) Dec 10, 2008

5. A letter from Appellate division shows fil

when | get copy of deny for leave t

Mi

entered and

appeal court. It also shows no service entered by

Jamil side so 30 day: limitation does not apply

This 1s the last page of motion

Date: October 2000 S/ Zhuang Li ¢

marked lexhibi

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- 38 -

6. The Appellate Division rendered a Decision on

January 20, 2009, unholding the Decision of the

Honorable Charles J. Markey. Annexed hereto ana

marked Exhibit “E”, is a copy of the Decision of the

Appellate Division.

ARGUMENT OPPOSING MOTION

7. The Supreme Court found that a post, not the

fence may have encroached over the property line by

approximately two inches (2”). The Court found that

this was truly de minimus and did not justify the

relief Mr. Cai petitioned seeking to remove the fence

and pay Five Thousand Dollars ($5,000) for

“processing” and rebuilding the fence.

8. There was no evidence offered that the two inch

(2”) portion of a fence post altered or impeded the

use of Mr. Cai’s property.

9. There was no evidence offered that the two inch

(2”) portion of a fence post reduced the value of Mr

Cal's property other than the general, non specific,

unsubstantiated claim of Mr. Cai.

10. In this Motion for Leave to Appeal, Mr. Cai

argues that your affiant has a “Superior right” over

“the landowner’. It is respectfully submitted that |

have made no claim against any portion of Mr. Cai’s

property. With all due respect the Supreme Court

merely decided that there was no encroachment or if

there was an encroachment it was truly de minimus

and did not justify the relief sought by Mr. Cal.

11. Mr. Cal raised on argument that he was denied

his constitutional rights and he alleges that “my

peaceful life destroyed by Mr. Jamil’s encroachment”.

12. [t is incredible that Mr. Cai lacks perspective. He

has taken an alleged encroachment of a fence post

onto his property by not more than two inches (2”)

and has literally become obsessed to the extent be

imagines that his life is destroyed (see page “5” of

Cai’s Motion for Leave to Appeal!) by reason of the

fence post encroaching onto his property by two

inches (2”).

13. Mr. Cal has raised several new issues in his

Motion for Leave to Appeal:

a. Mr. Cai makes an argument regarding Adverse

Possession. However, the issue of ‘Adver rse

Possession was not raised in the original Petition nor

was the issue of Adverse Possession raised in the

Appellate Division.

b. The Motion for Leave to Appeal alleges that the

removal of a prior fence was improper. However, the

removal of the former fence was not raised in the

original Petition.

c. On page “8” of the Affidavit in Support of the

Motion for Leave to Appeal? , Mr. Cal indicates that

he is raising his claim from Five Thousand Dollars

($5,000) as set forth in the Petition to Forty Nine

Thousand Dollars ($49,000) (see page “9” of Mr. Cai's

application? ).

d. Mr. Cai alleges on page “9” of his Motion for Leave

to Appeal that ‘the ‘ ‘two inch (2”) encroachment ...

created further safety hazard’4 No evidence was

offered at Trial to support an argument that there

was a pins? hazard.

. Mr. Cai alleges that the fence post m: ikes his

joie ‘unmarketable” (see page “9” of Cal's

Motion for Leave to Appeal)5. Not only is the

allegation blatantly false there was no allegation in

the original Petition that the property was

“unmarketable”. No expert witness testified before

the Honorable Charles J. Markey at the original

hearing regarding marketability of title.

14. It is apps irent that Mr. Cal does not understand

the “de minimis” concept.

15. Mr. Cai asked the Appellate Division for an

explanation of the term de minimis.

16. The Motion for Leave for Appeal confirms that

Mr. Cal still does not comprehend the notion of a “de

miniinis’” encroachment.

- 40 -

17. Mr. Cai has bene given every opportunity to

pursue his Petition io remove the fence between his

property and my property and he has been given

every opportunity to argue his claim to remove Five

Thousand Dollars ($5,000).

However, after thorough consideration, both the

Honorable Charles J. Mackey and the Appellate

Division have rejected his Petition.

18. There is no basis for granting leave to appeal the

Decision of the Appellate Division

WHEREFORE, your affiant respectfully prays

for an Order denying the Motion for Leave to Appeal

to the Court of Appeals and for such other and

further relief as this Court deems just and proper

S/Jamil Uddin 10th day of November 2009.

Notary Public: S/ RICHARD N. GOLDEN

#Note: There are exhibits with this opposition which

are map to Appendix#

Exhibit A: initial motion in queen court

Exhibit B: Queens court decision

Exhibit C: Petitioner Brief.

Exhibit D: Respondent Brief

Exhibit E: Appellate Division decision

Reference mapping:

| page “5” of Cai’s Motion for Leave to Appeal ->-17-, item 4

2 On page “8” of the Affidavit in Support of the Motion for

Leave to Appeal -> -22-, item 9

3page “9” of Mr. Cai's application -> -32- item 2, 4%

paragraph. (Mr. Jamil made reference error. Correction mad

4 page “9” of Mr. Car's application “safety hazard” ->-20-, item %

> page “9” of Mr. Cai’s application “unmarketable” ->-21-, item 8

- 4] -

Decision and order

SUPREME COURT OF THE STATE OF NEW

YORK

COUNTY OF QUEENS: LAS PART 32

ZHUANG LI CAI Petitioner

"against ~-

Papers read: Notice of Motion - 1; Affidavit in

Opposition - 2

CHARLES J. MARKEY, J.:

Petitioner seeks the removal of a fence of his

neighbor, the respondent, claimed to encroach upon

eae ’ . al ‘ . :

petitioner's neighbor. The Court has considered the

papers of petitioner and considered all the testimony,

exhibits, including photographs and surveys, and

extensive arguments taken at the hearing conducted

by the undersigned on January 31, 2008.

Based upon the testimony and the evidence, the

Court concludes that the fence does not extend into

the petitioner’s property at all and that only the

posts to the fence extend beyond the line, and that

the encroachment of the posts is truly minimal Such

a de minimis encroachment of the posts, and not the

fence hardly suffices to support the relief sought in

the notice of petition (Wing Ming Properties (U.S.A)

Ltd v Mott Operating Corp, 79 NY2d_ 1021,

1023(1992) [encroachment was ‘de minimis at best”

that neither justified injunctive relief nor monetary

damages “Indeed, plaintiff has not alleged or

demonstrated on the record before us That these

slight variations negatively affected its property

value in any measure “]) The requests for relief are,

therefore, in al] respects, DENIED.

‘he Court orders that the petition is, in all respects,

“t

DISMISSED

Counsel for respondent shall serve a copy of this

decision and order upon the petitioner bearing the

County Clerk’s stamp of its recording together with

notice of entry.

The foregoing constitutes the decision, order, and

opinion of the Court.

S/ Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York March 18, 2008

Appearances: Petitioner pro se

For Respondent: Richard N. Golden, P.C., 118-3:

Queens Blvd., suite 1220, Forest Hills, NY

11375, tel. No., 718-261-2600

- 43.

Decision & Order

Supreme Court of the State of New York

Appellate Division: Second Judicial Department

D21873 O/kmg _AD3d_

Submitted — December 16, 2008

REINALDO E. RIVERA, J.P.

FRED T. SANTUCCI

EDWARD D. CARNI

THOMAS A. DICKERSON, Ju.

In the Matter of

Zhuang Li Cai, appellant,

V

Zhuang Li Cai, Forest Hills, N.Y., appellant pro S

Richard N. Golden, P.C.. Forest Hills. N.Y.. for

respondent.

In a “proceeding” to compel M.D. Jamil Uddin to

remove a portion of his fence from where it allegedly

encroaches on the petitioner's property, and to

recover damages resulting from such _ alleged

encroachment, the appeal is from an order of the

Supreme Court, Queens County (Markey, J.), dated

March 18, 2008, which dismissed the petition.

ORDERED that the order is affirmed, with costs.

The evidence before the Supreme Court

established that, at most, the alleged encroachment

onto the appellant’s property consisted of one or

more fenceposts intruding onto the property by

approximately two inches. Under the particular

~ 44 -

circumstances of this case, the Supreme Court

properly conciuded, based on the record before it,

that the alleged encroachment was de minimis and

properly denied the appellant’s request to compel the

respondent to remove the alleged encroachment (see

Wing Ming Props. {US.A.] v Mott Operating Corp.,

79 NY2d 1021; Hoffmann Invs. Corp. v Yuval, 33

AD3d 511; Generalow v Steinberger, 131 AD2d 634;

but see Robert v Kohs, 35 AD3d 178). Moreover,

based on the de minimis character of the alleged

encroachment and the complete absence of any

evidence to support the appellant’s claim for

damages, the Supreme Court properly declined to

award the appellant any damages (see Wing Ming

Props. [USAT v Mott Operating Corp., 79 NY2d at

1023; see also Generalow v Steinberger, 131 AD2d at

G30).

RIVERA, J.P... SANTUCCIL, CARNI and

DICKERSON, JJ., concur.

ENTER: S/ James Edward Pelzer

Clerk of the Court

oo

Initial petition

SUPREME COURT OF THE STATE OF NEW

YORK

COUNTY OF QUEENS

index No: 27891/07

In the Matter of the Application of

Zhuang Li Cai Petitioner(S)

against:

NEW YORK, COUNTY OF QUEENS:

The petition of Zhuang li cai respectfully shows to

this Court as follows:

1) Your petitioner(s) resides at 9934 67rd apt 1A,

forest hills, NY 11375

2) The respondent(s) is/are M.D. Jamil Uddin, 3406

60st woodside NY 11377-2113.

3) See attachment. (one page)

7) Attached hereto as Appendix/Appendices is/are

copies of relevant documents showing petitioner's

right to win this case, including determination(s)

issued by respondent(s) that have a bearing on this

case and/or of which petitioner's hererin complains,

if any. These documents are Exhibit from A to N,

Court file has two original survey maps.

8) A prior application has not been made for the

relief requested herein.

WHEREFORE, your deponent prays that this Court:

Remove all fence posts from my property, located at

37°43 60st woodside, NY 11377 and pay $5000 for

processing expense and rebuild my fence. And such

other relief as the Court may find just and proper.

Date: Queens, New York

November 7, 2007 S/ zhuang Li Cal

46

Attachment:

1. My 50 years old chain fence removed by 3741 6Ost,

woodside owner Mr. M.D. Jamil Uddin. Only few

posts left. Exhibit F: shows the far end of the post

marked as “1” and where the old chain fence

foundation located. Exhibit G: shows enlarged far

end post. Exhibit H: shows the post at front edge of

my house “2” and the sidewalk post “3” and the iron

fence “4”. Please notice that the iron fence “4” is 2

Inch off the property line.

2. Before he put his new 4 Inch wide fence. I told Mr

Jamil not cross the property line and he signed

agreement (Exhibit A). I also show my survey map

which I got from building department (Exhibit B)

3. After he put his fence post cross the line, he told

me he has the survey and the boundary line is 2+

Inch inside of my side walk Then I ask “Island Wide

Land Surveyors” put the property boundary markers

(4 orange cutting markers) ($500, Exhibit I, Exhibit

L, Exhibit M, Exhibit N). I also ask “NY Land

Surveyor, LLC” do the survey map for avoid the

error ($500. Exhibit D).

4. Mr. Jamil removed the property line marker. So |

ask “Island Wide Land Surveyors” does it again and

give me their survey map. ($500. Exhibit C and

Exhibit J)

5. | explain to Mr. Jamil how property line defined

and the error margin and also tell him I found it is

possible his other side boundary line problem. I ask

Mr. Jamil remove his fence post with in 10 days. But

he did not remove his post. Then I inform Mr. Jamil

remove his post and pay $1500 within 30 days.

6. Mr Jamil removes the property mark again. Near

end of 30 day Mr. Jamil call me up said to meet his

contractor to see solutions. But I found he put his

ey

property marks (2 red paints Exhibit H, Exhibit M).

[ call him and told him that is NOT professional

work and not acceptable. Later a person call me said

he is Jamil’s friend. | said I only tall to Jamil. | call

Jamil but he told me that person is his surveyor he

want settle with me privately

7. How property boundary line defined

To allocated property line is 200 feet from edge ot 38

Ave and 425 feet from 39 Ave

8. The error margin: I told both my surveyors I need

100% accuracy for court use. “NY Land Surveyor,

LLC” told me that the first take-error 1s less than ‘/4

Inch normally each survey need 2 takes in 2

different date. Their job is 100% accuracy. The

“Island Wide Land Surveyors” told me that the

survey 1s good for the court

9. The motivation: The reason for Mr. Jamil want get

2+ Inch from my property line is he lost about 14

Inch from his north boundary with 3739 60st. |

learn that from several months fight with Mr. Jami]

There is a law said if the owner do not bring the

invader to the court the owner may lost his property.

That is why I have to bring Mr. Jamil to the court

and Mr. Jamil want settle privately. I do believe Mr

Jamil fully understand what happened

+5

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Exhibit F: Show far end original post “Il” and

original chain fence foundation.

Exhibit G: Show far end post “1” location

enlargement.

Exhibit H: Show middle original post “2” (Still exist

now).front original post “3” (take down by Mr. Jamil

later). The iron fence “4” shift 2+ inch inside of

property line.

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Exhibit I: Show the first property mark (orange with

nail. Removed by Mr. Jamil) The iron fence “4” shift

2+ Inch inside of property line.

Exhibit J: Show the first property mark (Orang:

with cut. Put on second time. The iron fence “4” shift

2+ inch inside of property line. Later covered by M1

Jamil)

Kxhibit K: Show the first property mark (red pait

put on by Mr. Jamii). The iron fence “4” shift 2+ incl

inside of property line

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property mark (Orange cut). !!Format note: Th

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- 60

Respondent initial opposition :

SUPREME COURT OF THE STATE OF NEW

YORK

COUNTY OF ain KENS Index No.: 2789 1/07

ZHUANG LI CAI Plaintiff(s)

“against-

MD JAMIL UDDIN Defendant(s)

STATE OF NEW YORE)

COUNTY OF QUEENS)

MD Jamil Uddin, being duly sworn deposes and

Says:

1.) This Affidavit is respectfully submitted in

opposition to Motion of Zhuang Li Cai

2.) 1 am the owner of the premises known as 37-41

60th Street. Woodside. New York. and faminuar with

the facts and circumstances herein.

3.) The property owned by Plaintiff in this

proceeding is located immediately to the south of my

property and known as 37°43 60th Street, Woodside

New York.

4.) The Plaintiffs broken drainage pipes on his

property at 37-43 60th Street, Woodside, New York.

diverted rainwater onto my property at 37-41 60th

Street, Woodside, New York

5) The grading of the plaintiffs property sloping

downward toward your affiant’s property and the

drainage pipes diverting water to the northerly side

of the plaintiffs propertv was causing erosion and

ee

threatening property damage to my home and the

contents of my home.

6.) Your affiant advised Plaintiff of his intent to

construct a cement “wall” about six (6) inches high

with a vinyl fence above the six (6) inch wall to

provide privacy and more importantly to prevent the

water and mud from flowing in a northerly direction

onto my property.

7.) After discussion with Mr. Cai we signed an

agreement acknowledging the property line is “along

the edge of the sidewalk”. Annexed hereto and

marked Exhibit “A”, is a copy of the Agreement.

8.) Prior to the construction of the wall

approximately six (6) inches high, Albert A. Bianco,

a Surveyor was retained by your affiant, the

Defendant herein, to mark the property line between

37-43 60th Street, Woodside, New York, and 37-41

60th Street, Woodside, New York.

9) An old fence partly broken and bending onto the

defendant's property was on the property line before

the new six inch wall and vinyl fence was installed.

A photograph of the old fence is annexed hereto and

marked as Exhibit “B”.

10) The plaintiff approved the removal of the old

fence.

11) The old fence was replaced by the six (6) inch

wall and vinyl fence constructed on the northerly

side of defendant’s southern property line and

adjacent to the sidewalk of Mr. Cai’s property known

as 37°43 60th Street, Woodside, New York. At no

point did the fence cross over the plaintiffs sidewalk.

- 68 -

12.) The constrvciion of a vinyl fence between 37-41

60th Street, Wecdside, New York, and 37-43 60th

Street, Woodside, New York, was completed on or

about July 1, 2007.

13.) After the construction of a fence, a Survey of the

property was prepared by Albert A. Bianco,

professional land Surveyor on or about August 21.

2007. Annexed hereto and marked Exhibit “C”, is a

copy of the Survey of Albert A. Bianco dated August

21, 2007.

14.) The Survey of Albert A. Bianco shows the vinyl

fence on the southerly property line of the premises

known as 37-41 60th Street, Woodside, New York, to

be either on the property line or slightly to the north

of the property line onto the premises known as 37-

41 60% Street, Woodside, New York. the properiy

owned by the defendant.

15.) Afier Plaintiff advised your affiant that the

fence was encroaching onto the property at 37-43

60th Street, Woodside, New York, a second Survey

was ordered.

16.) A&P Engineering and Land Surveying P.C.

made a Survey of the premises on or about October 3,

2007. Annexed hereto and marked Exhibit “D”, is a

copy of the Survey of A&P Engineering and Land

Surveying, P.C. dated October 3, 2007.

17.) The Survey of A&P Engineering and Land

Surveying, P.C. shows a vinyl! fence directly on the

southerly property line between 37-4 1 60th Street,

Woodside, New York, and 37°43 60th Street,

Woodside, New York.

18.) Prior to the commencement of this action,

Defendant showed the Plaintiff copies of the Survey

made on August 21, 2007 and the property line

» 69 «

markings made by the surveyor between the two

properties.

19.) Despite proof that the fence was not encroaching

onto plaintiffs property, the plaintiff nevertheless

commenced this action against your affiant..

20) As a result of the false accusations made by

plaintiff your affiant has incurred the expense of

hiring a second survey (See Exhibit “D”) at a cost of

$650

21.) Defendant has also incurred One Thousand Five

Hundred Dollars ($1,500) of legal fees

22) By reason of this baseless action, the defendant

has sustained costs of $2,150.

WHEREFORE, Defemdant prays for an Order

dismissing the Motion and an Order directing

plaintiff, Zhuang Li Cau, to pay to the defendant MD

Jamil Uddin Two Thousand One Hundred Fifty for

costs incurred together with such other and further

relief as this Court deems just and proper.

S/ MD Jaiml Uddin, Notary Public S/ Richard N

GOLDEN

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Surveyed AUGUST 21, 2007 = FINAL SURVEY

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Professional Land Surveyor - City Surveyor

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ENGINEERING ANO LAND SURVEYING, FP ¢

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JAMAICA, WHY 1313452

TELEPHONE (716) 657-0444

Fax (718) 657-8555 An

SURVEY No. 9954

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Petitioner bref in Appellat Division

New York Supreme Court

\ppellat Division second Departs

Docket # VOOR: 44451

J/huaneg Li ¢ . Moa ri

ivalnst

MUD. Jamal tiddis at (*}

| PRELIMINARY STATEMEN'

|. The center of the fight Mr. damil build 17 fe

wide house and try build & feet wide driver way. tut

on bis other side neighbor attached wall over O.1 fee

o after he build new 17 feet wide house. He only ha

9 feet from my fence lle does not have & feet for

meet building department code. He takes down n

lence and cro the property ne for get extra 0

feet 14 Inch from my property. That means m

property hecome 24.9 feet wad ldo not want gi

out that 0.1 foot. It is my property. | paid Tax for it

cannot give out that O.1 foot. Tt will greatly reduc

th ile position for my property My hou

Certihed Occupancy from building department |

base on I have 2.6 feet side walkway (Record page

‘1, Exhibit B' you can see Building department sei

on the bottom) \ [ know, the minim afety

requirement for the walkway is 3ZInch 2.66 feet

Any | the 2.6 feet will put my house tn violation

building code position and possib lost) certified

occupan

2. Mr. Jamil is intentional cross the boundary

\ licensed contractor lay out the foundation th

know they only have 24.9 feet. They build a 17 feet

wide house without any measurable error. The

know they only have 7.9 feet for driveway unk

takedown my fence In normal attachment wa

Lructur Mii lamil has many options to rdyust tl

- 80 -

attached wall or other solutions so he still can get 8

feet driver way but he decide take down my fence.

3. The Bottom line:

If Mr. Jamil respects the property line, I will not

surfer all legal burdens. I have no need to spend any

money: my 40+ year’s old fence only need put the

post back to vertical position and can stay for very

long time. | do not need spend any time on this issue.

It is my property.

Il. THE FACTS AND THE KNOWLEDGE, SKILL

AND LOGICAL THINKING NEEDED IN

UNDERSTANDING THE EVIDENCES.

Note: I found from the lower court Judgment, The

court understand what I| said in the court but unable

to do same analysis on his own. So my brief will give

details and steps to show how to do the analysis

work. It may be too dumb. Please bear with me | am

not lawyer. I prove things like do the math and

logical science.

4. My old fence:

There are three section of my old fence. The front

part is old chain fence show on Record page 26,

Exhibit H* red point 3. It extends to part of sidewalk.

The chain fence post is 2 Inch pipe. When Mr. Jamil

wants take down the front part | called police for

stop him.

The second section is iron fence it starts next to

front old chain fence post. The iron fence post yield 2

Inch into south my side. The reason of iron fence

yield 2 Inch is if replace old chain fence post with

iron fence post the front extension of chain fence will

lose support. The back end of iron fence is shared

with old fence post pipe show on Record page 26,

Exhibit H? red point 2.

The third section of my old fence is between red

point 1 and red point 2 which I agree to take down

with the condition Mr. Jamil’s new fence should not

cross the property line.

et.

Mr. Golden agrees my old fence is inside of my

property. See Transcript in Record page 67 line 14 to

page 68 line 19°.

5. Vinyl fence:

The vinyl fence is 6 feet tall plastic panel screw

mounted on 4 by 4 Inch post. The panel with

mounting bracket is about 3 Inch wide. For move the

vinyl fence you only need unscrew of the panel and

move the post. The post cost about $25 in Home

Depot if you want replace old one.

Currently the panel is mounted close to Mr. Jamil

side so it yielded about 1 Inch away from the post

south edge. But due to it is screw mounted if the post

not move out of my property then Mr. Jamil can

move his panel more into my property with in few

hours.

The vinyl fence runs like “K” as | said in the court.

Both end cross property line more than 2 Inch.

Front, Record page 26-27, Exhibit H*’, I, J: The

property line is 2 Inch north from Iron post. Notice

the orange property line stamp.

Middle, Record page 28, Exhibit L‘, and M: notice

the orange property stamp. The fence panel is a long

the property line. That 1s what low court Judge

talking about not cross the property line. The post

cross the property line about 0.1 foot or 1% Inch

Back, Record page 29 Exhibit N®5: notice the orange

property stamp cross. The vinyl post is 2 + Inch

crosses the property line.

6. How draw facts from existing evidences:

Look at the photo in Record page 105, the hearing

exhibit A®.

A. The vinyl post 1s 4 Inch width. I said in the court.

B. Where is the property line? From cap of the iron

post 2 Inch to the north iv inyl fence ade).

Prove 1: Record page 26, Exhibit H2 at red point 3.

We see the old chain fence post. The iron fence post

is 2 Inch inside of my property line. Old chain fence

exists for 40+ years.

=

Prove 2: Record page 22, Exhibit C7 (FE 0°-2” So, it is

on the top and close to GO St). Here is 0 foot and

Inch south from property line. In this survey it also

state where the property stamps (orange color)

located “Cross cut in wall (Typical”

Prove 3: Record page 23, Exhibit D® (0.15' S, on the

bottom and close to 60 St). Here 0.15 feet = 1.8 Inch

South from property line. There is 0.2 Inch

measurement error is within reasonable measuring

margin.

Prove 4: Record page 26, Exhibit I°. The orange first

property stamp (nail with orange color tape) was

made by Island wide land Surveyors it is about 2

Inch North from iron post.

Prove 5: Record page 27, Exhibit J'° The orange

first property stamp (Cross) was made by Island

wide land Surveyors again after Mr. Jamil removes

it. It is about 2? Inch North from iron post. It also

describe in the survey.

C. How much the vinyl post crossed the property

line. It is about 2 3/8 Inch.

From this photo we can see the cap of iron fence is

wide the iron post by % Inch and the horizontal bar

is narrower about 1/8 Inch.

D. The vinyl! fence panel is cross the property line

indeed. To get this conclusion we do not need 100%

accurate. By common sense if more than 50% of the

post cross the line the panel has to cross the

property line. How much is not important for get this

conclusion.

EK. Look at this photo® . which show vinyl fence and

iron fence contact to each other all way to the last

iron fence post (Which is old chain fence post at

Record page 26, Exhibit H? red point 2). What

conclusion we can get. There is NO gap between

vinyl fence and iron fence and they are in parallel.

In the Mr. Golden opposition to motion Exhibit C-

2, survey “Albert A, Bianco” (In Record page 491!) is

taken after vinyl fence is up. Look the vinyl fence

line and the met-fence line. At bottom of it both line

- 83 -

meet together and at 60 street sides you can see they

separated. This is a triangle. The property line is

marked along the met-fence and the vinyl fence is

inside of Mr. Jamil’s property. In Mr. Jamil's

opposition to motion 14 (In Record page 40!2) also

emphasis that.

Compare with what we see in this photo we can get

the conclusion. Mr. Jamil’s “Albert A, Bianco” survey

(in Record page 49!') is fake documentation. It does

not match the physical evidence.

7. Mr. Jamil provides court fake documents:

The court acknowledged that Mr. Jamil provides

altered agreement to the court (Record page 20,

Exhibit Al3 and Mr.Jamil’s Exhibit A in Record page

44'4), His purpose is trying misleading Judge we

agree on the line at middle of the curb. The curb is

not at middle of the property line. More than 2/3"4 is

in my side. Mr. Golden has NO objection and accepts

that Mr. Jamil provides court an altered document.

We know Mr. Jamil’s “Albert A, Bianco” survey (in

Record page 491!) does not match the physical

evidence. Here are more facts we can find from that

fake survey.

Fact 2: Mr. Jamil do not claim any money paid to

“Albert A, Bianco” survey. That is the only survey

claim my house 1s 2.5 feet away from property line

for meeting Mr. Jamil’s request. Mr. Jamil paid

$650 to “A&P Engineering and Land Surveying,

P.C.” and $1,500 legal fee. Ask total $2,150 pay.

Think about it, during new construction the real

property line is crystal clear before layout

foundation. At Aug 21, 2007, the vinyl fence already

up (show in the survey). The only need for this

survey is claim 0.1 feet property from my side. How

Mr. Jamil gets 1t?

Fact 3: Normally a survey will contains how far

away from the owner's house to the property line.

If you check all other 5 surveys you can find they

marked the property line is 2.6 feet away from my

house. (One survey marked in 2 feet 7 % Inch

- 84.

2.601 feet). But the only “Albert A, Bianco” survey

NOT show how far away from owner Mr. Jamil’s

house from the property line. Instead marked my

house is 2.5S away from the property line for meet

Mr. Jamil’s request. When I point out this fact at

court, Mr. Golden make an objection saying in

Transcript Record page 83, line 18'5. He do not know

what it is and “it has nothing to with the property

line”. At that time he is denying the property line is

2.58 from my house.

Fact 4: Normally a survey takes both end of street as

landmark as base. By review other 5 surveys, you

can see my property start at 175 feet from 38 Ave

and end at 200 feet from 38 Ave. The “Alberto A,

Bianco” survey did not take 38 Ave as landmark. It

takes multiple steps go cross the street then back to

east side of street. Here you need a little more

knowledge to understand what happened. If “Alberto

A, Bianco” uses 38 Ave as landmark to start with,

then NO room for get 0.1 foot. For each

measurement the MAX commonly may accept error

is % Inch = 0.25 Inch. As experienced surveyor can

do much better (we do not see much error in all other

5 surveys). The % Inch does not. help Mr. Jamil he

need 0.1 foot = 1.2 Inch which 5 times bigger than

allowed error margin. So “Alberto A, Bianco” needs

created multiple % Inch error to get 0.1 foot from my

property.

In case, he caught by authority he can say % Inch

is acceptable error. But he does not know the

measurement error follows Poisson distribution rule.

Base on probability theory, the error margin can go

against Mr. Jamil’s wish.

I know technically is impossible to make the

property line 2.5 feet from my house. If his “Alberto

A, Bianco” survey sent to court the court can take

action to revoke the surveyor’s license and not allow

“Albert A, Bianco” to hurt other people. The “Alberto

A, Bianco” survey may trigger criminal investigation

to see how Mr. Jamil gets this.

8. The facts draw from Mr. Golden’s objections:

o BS «

When I point out the property line black mark

made by “Albert A, Bianco” see Record page 28,

Exhibit L 4 and Record page 106 Exhibit D!®.

The Mr. Golden said “Im going to object to any

presentation to what is the property line other than

the survey...” on Record page 64, transcript line 22 -

page 65 line 5!’ . His objection also denies the red

property mark made by “Albert A, Bianco” sce

Record page 27 Exhibit K'8 and page 28 Exhibit M!°.

Both are not in the survey.

His statement supports the orange property stamp

made by Island wide land Surveyors. The orange

property stamp is described in survey.

Recall Mr. Golden objects 2.55 in “Albert A,

Bianco” survey is how far away property line from

my house. Mr. Golden throws out all the “Albert A,

Bianco” works. But his objection does not change the

truth. Mr. Jamil provides court fake document. You

do not need expert experience to know. All you need

to do is compare the surveys. The “Albert A, Bianco”

does not draw “art” on the ground and write “lottery

number” on the survey.

9. The hearing:

I am not lawyer. I think if I prove Mr. Jamil cross

the property line | win this case | have the right to

protect my property. So I only ask to move the post

out of the property line because if the post moved out.

the panel will go with it. I try simplified the case not

let miner issue confuse the Judge. Under this

condition when Judge asks me some thing else

wrong with the fence my answer is NO. See from

Record page 82 line 25 to page 83 line 42°. Limited

by time and the ability of my English I only can do

the most important thing to prove Mr. Jamil crosses

the property line and he provides court fake

documents. From the transcript I found the Judge

and Mr. Golden has no objection on the property line

is 2.6 feet away from my house.

There is NO argument I need to make in the

hearing. Every thing is on the paper. I just guide the

Judge to find the 2.6 feet number in the surveys.

- 86 -

Guide the Judge to see the fake survey where the

triangle is and where is the gap. Guide the Judge to

see the photo.

10. How draw logical conclusion from facts:

The 0.1 foot encroachment is very important for both

side of owner it is not truly minimal and is not no

negatively effect in property value.

Fact 1: If Mr. Jamil and “Alberto A, Bianco” provide

court fake documents and take the risk in criminal

charges and Jost hcenses then what they wanted is

not something truly minimal.

Fact 2: Mr. Jamil spent $2,150 (the pay for “Alberto

A, Bianco” not included). Compare with move vinyl]

fence cost (The vinyl fence post is $25 each if need

replaced) and time (1 or 2 day work). Very clearly Mr.

Jamil is not looking for truly minimal. In fact he

paid even more, He rebuild the front part of driver

way multiple times for remove the orange color

property line stamp. Each time the property stamp

put on he rebuild the front part of driveway. You can

see them in Record page 26 -27 Exhibit 19, J, K.

Fact 3: I paid Island wide land surveyors twice for

property stamps and survey. I paid NY Land

Surveyor PPLC for survey and bring Mr. Jamil to

the court. Why I do that for truly minimal and no

negatively effect in property value?

Fact 4: In my petition, I clearly state that I need

rebuild my fence. Without remove vinyl fence post I

cannot rebuild my fence.

Base on above facts, It 1s clear both side will not

spend a Jot of money and time for truly minimal

encroachment. It also clearly indicates there are

fundamental issues in this case.

11. Ten years occupancy law:

There is a law | do not know exactly name but the

law said if a person occupies a land for 10 year he

can declare he owns that land. That is the law I

learned from news paper and confirmed by 2

attorneys. Mr. Stephan J. Siegel and Mr. George W.

Klein, P.C. If I do not bring Mr. Jamil to the court, it

ye

is possible I will lose that 0.1 foot land. This law

recently changed with the condition the original

owner needs to be informed. The court supposes to

be able to help me get my land back. But fail to do so

in lower court.

12. Survey and measurement:

All measurements have errors but the error will

within reasonable range. The survey marginal error

is % Inch (from 2 of the surveyors I asked).Normally

surveyor use both end of street landmark as

standard point. 5 out of 6 surveys indicate my

property south line at 175 feet away from 38 Ave.

The north line is 200 feet from 38 Ave.

A survey should have a number indicate the house

how far away the property line at least from owner's

house.

In Woodside, the most property is 25 feet by 100

feet rectangle. 5 out of 6 surveys indicate my house

is 2.6 feet away from the property line (one marked

in 2 feet 7 % Inch = 2.601 feet). There is no

measurable error here.

13. The building zoning, code and how people buy

the house:

The zone is an area indicted how real state

property regulated. My property is in residential

zone 5. The code is regulation for how house is build

include the minion width required for walkway.

Kach house should have certification occupancy from

building department. When | buy my property |

order the survey (Record page 21, Exhibit B?!

survey is from building department) and_ the

certification to verify any violations. My lawyer

searches the court record also. The title company

and the bank also do their search to see lawsuit and

violations.

The property line be encroached will create great

reduction of the property value. In most case people

just walk away and do not want involved legal

burden.

- 88 -

lil. THE ARGUMENTS

14. The conclusion “The fence does not extend into

the petitioner’s property at all” is incorrect base on

the legal definition of fence and the evidence.

First, the fence post is part of the fence. Without

post the fence panel will fall down. The fence post

cross the property line is the fence cross the property

line. For you easy understand, when we say the

horse it include the house leg also.

Second, the fence penal also crosses the property

line. The fence run lke “K” at both end of fence

penal also crosses the property line. See above point

5 and 6.

15. The conclusion “The encroachment of the post is

truly minimal” is base less.

Big or small is relative concept. We need base point

to compare. With out comparison or quantify

number, the conclusion is base less. For my 2 Inch

chain fence it is 100% lost. The 1 “% — 2+ Inch is not

truly minimal for my 31 % Inch (2.6 feet) wide

sidewalk. Compare with 25 feet normal property

width the 24.9 feet is not truly minimal.

16. The statement “Indeed, plaintiff has not alleged

or demonstrated on the record before us that these

slight variations negatively affect its property value

in any measure” is ignoring the evidences in the

motion and illogical statement:

The court already acknowledged the center of the

fight is 0.1 foot or more. If any one thinks 24.9 feet

property and with neighbor encroachment will have

same value as 25 feet property then it like point to

black color and say it is white color.

Ask your self would you and the most of buyers

buy encroached property? When a property line was

encroached it greatly reduced the property value.

NO one wants deal with unnecessary legal burden.

My chain fence took down and no way to restore at

original position and my 31 % Inch wide sidewalk

lost 1 % - 2+ Inch are negative impacts. It is hard for

me deal with 6 feet high hard plastic fence (hit and

- 89 -

break) than 3 feet high chain fence (hit bounce

back.). In the motion I clear state Mr. Jamil’s

motivation. He wants to declare the minimal

encroachment become his property and take down

my front iron fence in the future.

17. Compare residential real state property with

business real state property like compare apply with

orange:

Residential and business are different concept. The

building zoning /code / size/ owner/ value are

different. 1 have no comment on why in the ruling

example plaintiff accept the ruling. But it is not the

case for residential in Woodside. The most people

only have 25 feet wide to build as big as possible

house. Lose 0.1 foot cannot be ignored.

Additional, allow new construction encroach to

neighbor is not lawful.

18. How hard to remove a viny] fence:

A fence is light structure and easily built. The

vinyl fence panel is screw mounted. The panel can be

install/uninstall within few minutes. The only real

needs are move the post. The cost of the post is $25

each at Home Depot. Mr. Jamil paid $2,150 is way

over the move post cost.

19. The law and how property line defined:

Again | do not know the name of the law but I

know i¢ is exist. Who use the land more than 10

years who can declare is the owner. My fence exists

for more than 40 years. The photo is valid evidence

1 the court. My property can restored 100%

accuracy base on the photo.

5 surveys indicate I have 2.6 feet sidewalk so my

property should 100% accurate restored.

Here is what my understanding how it works. In

most case, my old chain fence is stand on 2.6 feet

line. But technically “% Inch error allowed. In the

case the surveyor measures % Inch into my old chain

fence post. Normally surveyor needs respect existing

landmark. He will not ask for cut % Inch of my post.

If any one insist want cut that % Inch from my 2

- 90 -

Inch post, the 10 years occupy law protect that from

happening.

20. What is wrong in lower court?

When Mr. Jamil want take down front part of my

old chain fence. See Record page 26 Exhibit H? red

point 3. I call police to stop him. The police told me it

is civil issue need go to court.

{ writ to building department point out they are

responsible for support their survey see Record page

21 Exhibit B!. They suggest hire lawyer bring Mr.

Jamil to the court. They do not have resource.

After discuss with lawyers I think I can do it by

myself. I know personal property is protected by law.

I am an engineer and know how to prove Mr. Jamil

cross the property line base on 4 of surveys I have. If

Mr. Jamil provides court fake survey | will have

better way to prove it.

Occupy my property against my wish is like

robbery. It is invasion. If court cannot protect me

then it is a problem.

The ruling from lower court directly support Mr

Jamil’ fence occupy my property and support the

person provide court fake documents. The ruling is

incorrect In any sense.

A. If encroachment allowed then open the door for

endless construction and encroachment because both

side can do same thing take down the fence and

rebuild new fence the total cost only about $1,000 -

$2,500 for rebuild new fence or even less if just move

over the existing fence post.

B. Due to the property is in plaintiff side. The

plaintiff can just cut the encroached fence along the

property line. It is constitutional right to protect

personal property. In fact, Mr. Jamil told me that |

can cut down his fence if he crosses the property line.

C. Steal one cent from billionaire still is criminal.

Encroachment still is encroachment. Court suppose

ruling on truth and give justice.

- 9} -

Ill. THE CONCLUSION

21. Conclusion:

The personal property is protected by law. I ask

court for protection. I have right to get protection.

All new construction should absolutely respect to the

property line. NO encroachment allowed.

Mr. Jamil provides court two faked documents

This encroachment is not only greatly reduced my

property market value it also greatly reduced it

usage value. I may lose my Certify of Occupancy

from building department due to do not meet safety

minim walkway width code.

Three of the orange property stamps still on the

ground. The front one can restored by adding 2 Inch

north to the top of my iron fence.

It is not a big job to move vinyl fence post back.

Mr. Jamil is intentional cross the property line. He is

responsible for all the cost.

All my expense should reimbursed, | ask total

$6,000 now need include the appeal process cost.

A 30 minutes field visit will make every thing crystal!

clear. 10 minuets remove the fence panel and use

tape ruler you can find both house 7.9 + 2.6 = 10.5

feet apart.

S/ Zhuang Li Cai

Refference mapping:

' Record page 21, Exhibit B -> -49-, Exhibit B

* Record page 26, Exhibit H -> -59-, Exhibit H

3Transcript in Record page 67 line 14 to page 68 line 19.->

-109-, line 30 to line 34

4 Record page 28 Exhibit L -> -63-

’Record page 29 Exhibit N -> -65-

6 Record page 105, the hearing exhibit A -> -133-

7 Record page 22, Exhibit C -> -51-,-52-

8’ Record page 23, Exhibit D -> -53-,-54-

9 Record page 26, Exhibit | -> -60-

Kecord page 27, Iuxhibit. f

Record page 49 -> -/, 7"

In Record page 40 -> -67- item 11, -68>,:te:

Record page 20, hxhibit A 1i8- Kxhibit A

'Mr.Jamuil’s Exhibit A in Record page 44 O-, Exhal

Record page 83, line 1& -> -120-, line 10

Record page 106 Exhibit D 134° Exhibit B longi ri

Record page 64, transcript line 22 — page 65 ling

1O7- line & to - line 16

Record page 27 Exhibit | 62° IKxhibit

‘page 28 Exhibit M 64° tH xhibit M

' Record page 82 line 25 to page &3 line 4 119

Ntecord page ‘| Kxhibit is . 1g | hibit

Respondent BRIEF

New York Supreme Court

Appellate Division - Second Department

Docket No.: 2008-4456

Queens County Clerk’s Index No.: 27891/2007

Zhuang Li Cat Petitioner

against

MD. Jamil Uddin Respondent

RICHARD N. GOLDEN, P.C

Attorney for Respondent

Counter Statement of Questions

1.) Q. Has appellant provided evidence that property

value has been affected. Answer: No

2.) Q. Has appellant provided evidence that the

Certificate of Occupancy will be affected? Answer

No

3.) Q. Is the encroachment of the fence posts di

minimis? Answer: Yes

STATEMENT OF FACTS

Appellant commenced an action to compel

Respondent to remove fence posts and pay Five

Thousand Dollars ($5,000) for “processing expenses

and rebuild... fence” (Record on Appeal, page “17"!)

On January 31, 2008, the Honorable Charles J

Mackey conducted a hearing on this matter

At the Hearing, the Court reviewed three (3)

Surveys made after a vinyl fence was erected

between the property of Appellant and Respondent

|.) Survey dated July 9, 2007 (Record on Appeal

page “23"4)

2.) Survey dated August 21, 2007 (Record on Appeal

pages “48 -°49°%)

- 94 -

3.) Survey dated October 3, 2007 (Record on Appeal,

pages “51” - “52"4)

The property to the south of the fence is owned by

Appellant and the property to the north of the fence

is owned by Respondent (see page “76” of the Record

on Appealé ).

Mr.Cai admits the fence constructed by

Respondent is north of the property line (see page

“93” of Record on Appeal, lines “10” - “16"6). It is

only two (2) or three (3) fence posts that allegedly

straddle the property line.

The Court clarified the dispute in the following

exchange with Appellant

(see Record on Appeal, page “93"7 ):

The Court: And so I still don’t see what the problem

is. Looks hke the fence is laying on the property line.

Mr.Cai: Yes

The Court: At the edge of it.

Mr.Cai: Yes. My Motion is to remove the post. |

didn’t say his fence.

The Court: Are you saying the fence is on the north

of the property line, but the post impinge on your

property?

Mr.Cai: Two Inch

The Court: It’s the post. So you want the post moved

back two inches. Okay. Post. So wherever there is a

post, that little bit of land is being taken from you.

Mr.Cai: I tell you why. The post is orange square.

(Record on Appeal page “93”, lines “3” - “17"8)

After Trial, the Honorable Charles J. Markey

wrote a Decision and Order dated March 18, 2008.

Based upon the testimony of Mr.Cai and review of

the three (3) Surveys depicting the new vinyl fence

between Appellant’s and Respondent’s property.

Judge Markey concluded: “the fence does not extend

into the Petitioner's property at all and that only the

-95 -

posts to the fence extend beyond the line and that

the encroachment of the posts 1s truly minimal”. The

Court also noted in the Decision that “Plaintiff has

not alleged or demonstrated on the record before us

that these slight variations negatively affected its

property value in any measure”. Citing Wing Ming

Properties (USA) Ltd. v. Mott Operating Corp. 79

NY2d 1021, 1023 the Honorable Charles J. Markey

concluded that the encroachment neither justified

injunctive relief nor monetary damages.

I

VALUE OF PROPERTY

Mr.Cai alleges in his Preliminary Statement that

the aforementioned encroachment “will greatly

reduce the sale position for my property”. However,

Mr.Cai offered no evidence to support this allegation

at. Trial and has not offered any new evidence on

appeal to support this argument.

|

“CERTIFICATE OF OCCUPANCY”

Arguments made by Mr. Cai about “possible lost

certified occupancy” (see pages “1” and “8” of Brief? )

are confusing, misleading and speculative. No issue

was raised at Trial that the encroachment of a fence

post by 0.1 feet would result in the “possible lost

certified occupancy”. No statute or case law has been

offered by Appellant to support the argument that

the Certificate of Occupancy of the premises would

be altered by an encroachment of a two (2) inch

portion of one or more posts onto Appellant’s

property.

IT]

DI MINIMIS ENCROACHMENT

Mr. Cai claims that the fence posts encroach onto

his property by about two (2) inches. In fact, the

Survey dated July 20, 2007 shows portions of the

fence, one (1) inch to two (2) inches south of the

property line onto Appellant’s property and at other

- 96 -

points, one (1) inch to three (3) inches north of the

property line onte Resnondent’s property (see Record

on Appeal, page “22” 10). However, the Survey dated

October 3, 2007 shows no encroachment (see Record

on Appeal, pages “51” and “52”!!). The Survey dated

August 21, 2007, shows that the viny] fence is either

on the property line or just to the north of the

property line onto Respondent’s property (pages “48”

and “49"12). The three (3) Surveys taken after the

vinyl fence was erected confirm that, at best, there

was a one (1) to two (2) inch encroachment at two (2)

points along the property line.

The First Department in Wing Ming Properties

(U.S.A.) Ltd. v. Mott Operating Corp. 172 AD2d 301

(Affirmed, 79 NY2d 1021) found that the alleged

encroachment could not affect the ability of Plaintiff

to maintain its structure. The Appellate Division

and Court of Appeals took an equitable approach to

the alleged encroachment weighing on one side the

detriment to the Defendants if they had to remove

the encroachment and weighing on the other side of

the scale of justice the benefit to the Plaintiff.

Both the Appellate Division and the Court of

Appeals held that the encroachment was de minimis

and although the encroachment did not significantly

affect the Appellant, the removal of the

encroachment would be a significant detriment to

the Respondent.

The Appellate Division 2nd Department has

adopted the same equitable approach measuring the

encroachment and weighing the hardship to the

Defendant in removing the encroachment against

the lack of benefit to the Plaintiff. See Generalow v.

Steinberger 131A.D.2d 634 (2d Dept. 1987). See also

Medvin v. Grauer 46A.D.2d 912 (2d Dept. 1974).

CONCLUSION

The two (2) inch encroachment of a fence post onto

Appellant’s property is truly di minimis.

Appellant failed to provide any evidence that the

two (5) inch encroachment of a post would affect the

value of the property nor would it affect the

Certificate of Occupancy.

By reason of the foregoing, the Decision of Judge

Markey should be sustained.

Dated: Forest Hills, New York, November 10 2008

S/ RICHARD N. GOLDEN, P.C.

Attorney for Respondent

Reference mapping:

' Record on Appeal, page “17” ->-4!

2? Record on Appeal, page “23” ->-

3 Record on Appeal, pages “48” - “

4 Record on Appeal, pages “51° > “52”

’see page “76” of the Record on Appeal -> -114- last 4" line to

-115- line 20

* page “93” of Record on Appeal, lines “10" - “16" ->-127-, line |

to line 8

7 Record on Appeal, page “93”, ->-126- line 22 to -127- line 12

8 Record on Appeal page “93”, lines “3” - “17” -> -126- line 24 to

-127- line 3

“pages “1” and “8” of Brief ->-79- to -80- line 2 and -84- line 5 to

line 37

'0 Record on Appeal, page “22” -> -51- to -52- Exhibit C

'! Record on Appeal, pages “51” and “52” -> -76- to -78

'2 pages “48” and “49” -> -72- to -75- Exhibit C.

- 98 -

Petitioner Reply Brief

New York Supreme Court Appellate Division

Second Department Docket # 2008-4456

Zhuang LI Cai Petitioner

against

MD. Jamil Uddin Respondent,

I. ANSWER Counter Statement of Questions.

1.) Q. Has appellant provided evidence that property

value has been affected?

Answer: Yes, the Property line encroached by 2+

Inch. The total property width is reduced from 25

feet to 24.8 feet.

2.) Q. Has appellant provided evidence that the Certificate

of Occupancy will be affected?

Answer: The minim safety requirement for the

walkway is 32Inch. My walkway is 31.2 Inch. The

encroachment is 2+ Inch. Now the walk way is 29.2-

Inch and far less than 32 Inch and not meet safety

requirements. It is building department right to

make any decision on it.

3.) Q. Is the encroachment of the fence posts di

minimis?

Answer: No. 2 Inch encroachment takes away my fence

completely. My 31.2Inch walkway reduce to 29.2 Inch is not

di minimis.

Il. Argument with reply Statement of Facts

On reply brief page 1 line 6 — 13! only lst 3 Surveys.

But the key issue is where the property line is. There

are five Surveys present to court. 4 of them clear

indicate the property line is 2.6 feet away from my

house north. Judge and Mr. Golden already agree

2.6 feet is the correct number.

For reply bref page 1 line 162, the reason for me

saying the fence on north side is try to reduce the

- 99 -

complexity of question and put focus on the post

encroachment. The post move out the fence panel

will go with the post.

For reply brief page 1 line 17-18%. I did not say only 2

or 3 fence posts cross the property line. That is Mr.

Golden made up. Mr. Golden made up thing does not

exist in the record and even without think it is

physically possible or not.

Look at record page 26 exhibits H‘4 and record page

105 Exhibit A5. The posts are look like in perfect

line. Recall the brief page 4 line 1°. I said the viny]

fence runs like “K” at front and back end they cross

the property line by 2+Inch. Look at record page 28

Exhibit M7. You can see at middle section the fence

panel barely along the orange property marker. So

the post has to be cross the property line. In fact all

post cross the property line. At middle section, they

cross the property line by 1.2+ Inch. Think the fence

is nearly 100 feet long that is why in record page 26

Exhibit H4 you cannot see the curve (0.8 Inch

difference).

Now we look Mr. Golden said it is just 2 or 3 posts

cross the property line by 2 Inch. The posts are 6 feet

in between. In a line of posts not cross the property

line those 2 or 3 post shift position bv 2 Inch we will

not see something like record page 26 exhibits H4

and record page 105 Exhibit A5. The posts are simply

can not line up. You will see those 2 - 3 posts out of

the line. It is 50% of the post width.

1. VALUE OF PROPERTY:

Property line encroached by 2 +Inch is an evidence

for property value reduced. What other evidence

needed? You cannot compare two different houses,

too many different facts. You cannot compare same

house at different time, the market changed. We

even cannot give the exactly amount that is different

from buyer to buyer. We cannot put the house in the

market to see the reduction, because it is not

realistic ask buyer if this house not encroached what

you like to pay. The only correct way is comparing

- 100 -

same house with and without property line be

encroached. One thing for sure, the buyer will use

property line encroached as a _ reason of price

reduction. I like ask Mr. Golden. Does he like to use

the encroachment for reduce house price he wants to

buy? Here we need use logical thinking and common

sense. We need agree what the majority buyer will

do in this situation. Additional the usage value also

a part of property value I already explain in my

brief.

2. CERTIFICATE OF OCCUPANCY:

The lower court shows Jeak of knowledge how

residential property is build. How hard people try

maximizing the usage of the land. The minimum 32

Inch walkway is I leaned from contractor, civil

engineer and building department web site. I just

raise attention for court to check with building

department to see what safety code involved. I try

letting court understand how residential property

land is used. Compare residential property with

business property land is comparing orange and

apple. I say, “may” because | am not building

department.

My walkway is 31.2 Inch which 2.3% in short from

minimum safety code but still get Certify of

Occupancy.

Mr. Jamil Uddin driveway is 7.9 feet, which is

1.93% in short from minimum safety code. Which is

less than my walkway so building department may

still give him permission if no other problems.

If I lost 2+ Inch, it will be 8.75% short than

minimum safety code. This 2 Inch is more important

for me than for Mr. Jamil Uddin.

3. DI MINIMIS ENCROACHMENT:

The property line is 2.6 feet already confirmed.

The Judge and Mr. Golden agreed. The orange color

property markers also clearly indicated in the

Survey. Mr. Golden has NO objection on his reply.

- 101 -

Any attempt change focus is just waste time. I just

ask all post should move out of the orange color

property markers.

The court order will as simple as move every thing

out of 2.6 property line, which is stamped in orange

color. If Mr. Golden thinks only 2 - 3 posts cross the

property line that is not big job. It is just few hours’

work. The court marshal, Mr. Golden and me work

together to find out how many post need move. We

do not need argue how many posts and how much

cross the property line.

The benefits for me are

a.My house will better fit building department safety

code.

b.I will in good sale position when | want sale my

house.

ec. never worry about property take by Mr. Jamil

Uddin after 10 years.

d.I can have 31.2 Inch wide walkway. That is nearly

6.5% wider.

e.l can build iron fence for protect me break the viny]

fence.

f. I do not need go higher court for protect my

personal property.

The hardship for defendant does not exist.

] already explained how easy to move the fence. Mr.

Golden has no objection on it. If Mr. Jamil Uddin

contractor and pay the full cost of remove the

encroachment at front. Mr. Jamil Uddin can pay

back monthly amount of 0.1% of his annual income

or any amount he can work with but not less than

$50 a month until the balance to zero.

The total move post cost about $375 in new post and

$400 in 2 men 2 days labor. We can double that

amount $1,500 will be enough.

- 102 -

III. The questions:

i. A homeless rob a man for $1. When they go to

court, the homeless said he is in hardship and it is

the di minimis lost for the man. Do you think the

homeless have the right to keep that $1 or the man

has the right to get $1 back?

My answer is the man has the right to get back $1.

The homeless need go to jail.

2. Mr. Golden in his reply of brief did not objecting

the fact. Mr. Jamil Uddin is intentional cross the

property line. Do I need give him my property to

meet his bad decision and demand? Do I need spend

money to protect my property?

My answer is I do not responsible for Mr. Jamil’s

mistake. Mr. Jamil Uddin should bear with all the

cost. He should pay $6,000 for my expense now.

3. Compare Mr. Jmail Uddin take 2 Inch from my

property only garn 2% in driveway width. But I lost

6.5% in walkway width. Which side is the truly di

minimis?

Everyone knows this math.

IV. The conclusion:

Where the property line is is clear without any

objection. The di minimis ruling example does not

apply to this case. | do believe the court ruling

should not encourage the intentional encroachment,

especially for the new construction. The ruling

should not open the door for someone intentionally

cross the property line. All personal property should

protect by law without any hardship challenge.

S/ Zhuang Li Cai_ 12/9/2008

Reference mapping:

' reply brief page 1 line 6 — 13->-93- line 33 to -94- line 2

2reply brief page 1 line 16 -> -94- line 7-8

Sreply brief page 1 line 17- 18,->-94- line 9-1]

103

‘record page 26 exhibits H ->-59- Exhibit H

record page 105 Exhibit A ->-133- Exhibit A

6 the brief page 4 line 1 -> -81- line 17-18

record page 28 Exhibit M -> -64- Exhibit M

- 104 -

Court room Transcript & Exhibits

SUPREME COURT OF THE STATE OF NEW

YORK

COUNTY OF QUEENS: CIVIL TERM: PART TT32

4HANG LI CAI Plaintiff

-- against -- INDEX NO. 27891-07

JAMIL UDDIN, M.D. Defendant.

Supreme Courthouse

25-10 Court Square

Long Island City, New York 11101

January 31, 2008

BEFORE: HONORABLE CHARLES J. MARKEY

JUSTICE

APPEARANCES: ROBERT GOLDEN, ESQ.

Attorney for Defendant

TAJUANA WILSON, RPR Senior Court Reporter

THE CLERK: Part TT32 now in session. Honorable

Charles J. Markey presiding. Index No. 27891-07,

Zhang LiCai, plaintiff, versus Jamil Uddin, M.D.,

defendant.

THE COURT: I looked over the papers. MR.Cai,

youre complaining that MR.Uddin - oh, we need the

appearance of both parties.

MR.GOLDEN: Richard Golden for the respondent °-

defendant Mohammed Jamil Uddin, 118°35 Queens

Boulevard.

THE COURT: Charles, would you swear in MR.Cai.

THE CLERK: State your name for the record.

THE WITNESS: Z-H-U-A-N-G, L-I1, C-A°l.

THE CLERK: Please raise your right hand. Z H A N

G LIC AI, called as a witness by the Plaintiff,

having been first duly sworn by the Clerk of Court,

was examined and testified as follows.

THE CLERK: Thank you. Please be seated.

- 105

THE COURT: This is a hearing on order to show

cause or rather notice of petition by MR.CAI, and it

concerns a fence line separating his property at 37

43 60th Street in Woodside from the next door

resident, which is, I believe, 37-41 60th Street, which

is MR.Uddin’s property. And you're asking for

removal of all fence posts from my property and for

the defendant to pay $5,000 for expenses and to

rebuild my fence. Okay.

What I’ve read in the papers, apparently, you had

a chain link fence between your property and the

property to your north, correct I'm sorry, to your

south?

MR.CAI: It was taken down right now

THE COURT: Now did you agree with MR.Uddin to

have that fence removed?

MR.CAI: Yes. At the beginning he told me -- he say

we only need one fence and that | will build iron

fence and we'll only need one. I agree. And at that

point I told him if he want 100 percent ownership for

the fence he need to build up a fence 100 percent

inside of his property not in the middle of the lot and

he agreed. He say he will build high fence inside of

his property. That is common almost so | almost

agree,

THE COURT: Okay. This happened over a year ago,

| think, the fence. The old chain link fence was

removed and then the new vinyl! fence was put up,

what, July 2007, I believe?

MR.CAI: Which one?

THE COURT: The new vinyl fence. Is it vinyl fence

that went

MR.CAI: Yes. He set up what date | can’t recall

exactly, but right now his vinyl fence is up and his

post is up first and then put the fence up.

THE COURT: Okay. It’s complete. The whole fence

iS up.

MR.CAI: Yes.

THE COURT: All right. And you’re saying that he

put it over onto your property line -- on your

ie

property line o that its crossed over Z inche O}

more onto your ide of the division line: is that

correct?

MR.CAI: That's correct. | give you more detail about

his fence with my property line. My property line i

supposed to go straight line, his fence runs like a K

this way, on both end. His cross line like two inch

across and the K, the angle, this one, is cross one

inch, little more than one inch. I show the photo here

THE COURT: Is it in your papers, the photo you'r

holding, or is that a picture that’s not in here?

MR.CAI: The picture I have, you have that picture in

my motion, but another another one, you know

may not be like this one show exactly how much it

cross at K angle

THE COURT: All right. I’m looking at it. Did you

it?

MR.GOLDEN: No

MR.CAL: You could have one

THE COURT: Let MR.Golden see it pleas

MR.GOLDEN: Your Honor, there appears to b

three photographs. I'm not sure what each of thos

photographs are. MR.Cai, if | may ask you, on th

far left handcorner, is this the old fence

MR.CAIL: Yes

THE COURT Was that removed’?

MR.CAI: Yes

MR.GOLDEN: That’s no longer ther

MR.CAI: Yes. Yes

MR.GOLDEN Middle picture with this tubing. what

is that?

MR.CAI: That is still there

MR.GOLDEN: That?

MR.CAI: Any old fence post later in the front you

will see iron fence sauntering on the middle. That

fence post still stay, my fence. The right

THE COURT: You're talking about middle photo

MR.CAI: Ye

1Q)/

THE COURT: It’s what kind of fence? Old fence”?

MR.GOLDEN: Is this the supporting base that

used to be holding up the chain link fence?

MR.CAI: Yes. The angle of the chain fence. | hav

two sections fence. On the and like 50 years old

And iron fence, | don't know when they build 1s at

front section and then two section

MR.GOLDEN: What is this photo on the mght?

MR.CAI: The picture is bottom of that post. You can

see the fence and black mark

THE COURT: Black mark

MR.CAI: It’s black mark they say they say damuil

say that he posted property lot

MR.GOLDEN: Your Honor, ['m going to object to any

representation to what 1s the property line othe:

than the survey that we have offered to the Court

THE COURT: We have battling surveys

MR.GOLDEN: Other than - | have no objection. The

photographs on the left is not a representation of

what the fence is now. So | would object to that. |

don't beheve any of these photographs have merit to

this particular claim

THI COURT: [ll have a look and see. Let me se

What it is. One on the left?

MR.GOLDEN: That was the old fence

THE COURT: That's your house in the picture

MR.CAIL: Yes

THe COURT: All mgeht. And that looking out

towards the street or towards the back of your

MR.CAE: Cross street

MR.GOLDEN: Is that facing

THk COURT: Actually, it’s looking toward the bacl

of your property

MR.CAI No, looking to the street

THE COURT: That's the street. Okay

MR.CAI: Cross street

THE COURT: The house in the back, is the hous

across the street?

- 108 -

a The photo in the back of my house looking

THE COURT: I see this chain link fence. It does

look --

MR.CAI: But it look good.

THE COURT: -- didn’t look like it was in good shape.

MR.CAI: Yes. Fifty years old.

MR.GOLDEN: And middle post is still there?

THE COURT: The middle photo.

MR.CAT: Middle photo.

THE COURT: That was support post for the old --

MR.CAI: Yes.

THE COURT: -- fence?

MR.CAI: Yes.

THE COURT: Where was it located on property line?

MR.CAI: The gate on the left side of the photo has a

gate and the post is this way.

THE COURT: The third picture shows it’s next to

gate post. Vinyl gate post.

MR.CAI: Okay. My point is middle photo you

examine, see his post across my post already?

MR.GOLDEN: Your Honor, I’m going to object. ['m

going to object to this line of testimony because it

as

nothing to do with the actual survey. It is only a

photograph.

THE COURT: | just want to hear his side.

MR.GOLDEN: All right.

THE COURT: The old fence.

MR.CAI: Yes.

THE COURT: As far as you know, was it located on

the property line on your side or the other side which

MR.CATI: On my side. Survey I| have -- I submit with

the motion.

THE COURT: Which survey is that? Which of your

surveys?

- 109 -

MR.GOLDEN: I believe that’s Exhibit 8.

MR.CAI: Exhibit B.

MR.GOLDEN: B. Survey from 1963.

MR.CAI: B and not D. B and E. That is the whole 40

years old. One is what 20 years old. They have date

on that when --

THE COURT: Okay. There is in your papers a

survey done in 1963, right?

MR.CAI: One is 1963 and another is --

THE COURT: I don't have a degree in civil

engineering, so I see -- I see straight lines. It is very

interesting, but '’'m not too sure.

MR.GOLDEN: Your Honor, it appears that my

client’s property is to the north at the top of the page.

THE COURT: That was the older house that was

knocked down, is that right, or is it the same house

that’s there now?

MR.GOLDEN: They’re not showing my client’s

property to the north. They’re just showing the

plaintiffs property to the south.

THE COURT: Right.

MR.GOLDEN: But if you notice the fence is south of

the property line. That is that the fence was the

original fence. The chain link fence was erected on

ried plaintiffs property south of my client’s property

ine.

THE COURT: That’s the dotted line?

MR.GOLDEN: Yes.

THE COURT: Dashes. A dashed line.

MR.CAI: That’s right. The chain link fence inside of

my property.

THE COURT: Okay. I see it.

MR.GOLDEN: So we're in agreement.

THE COURT: MR.Golden agrees with you.

MR.GOLDEN: We’re in agreement that that fence

was within the plaintiff's property line.

MR.CAI: The post.

- 110-

THE COURT: Then we go to the next survey,

Exhibit C, but we’re surveilling July 20, 2007. Now

was this at the time the old fence was up or

afterwards?

MR.CAI: Older fence is down already.

THE COURT: Okay.

MR.CAI: Older fence is down already and my iron

fence still stands from the part -- iron fence still

stands. And since, you know, I’m engineer, I explain

what key number when you're looking to the key

number is 2.6 feet. The property line is 2.6 feet away

from my house.

MR.GOLDEN: Your Honor, I don’t see 2.6. I see 2.7

feet.

THE COURT: On this survey I see it. It says 2.7 and

one quarter. Two feet seven and one quarter inches.

MR.GOLDEN: That’s what.

MR.CAI: If you translate the decimal, it will be 2.601

something.

MR.GOLDEN: We're talking about feet and inches.

That’s what the survey indicates. Your Honor, just

for clarification, MR.Uddin’s_ property, — the

defendant's property, is to the right or to the north.

THE COURT: I see.

MR.GOLDEN: Okay. Now, your Honor, I also like to

point out this survey seems to be somewhat

ambiguous. If you look at the top near 60th Street, it

says F-E, which I

believe is fence. One inch plus or minus N-O. I think

that means to the north.

THE COURT: North, I think.

MR.GOLDEN: Below that it is 2 inches plus or

minus to the south. Now that means that -- first of

all, I don’t know how much of a variance there is

between plus and minus, but one part of that fence is

on my client’s — over onto my client’s property and

the other may or may not be over onto the petition’s

property. The survey isn't precise. It says plus or

minus and it’s not sure.

-1I1l-

The next item down where it says 1 inch to the

south plus or minus and then the wall is 3 inches to

the north which is again onto my client's property.

And, finally, at the bottom it says fence on the line

and in the wall one :nch plus or minus to the north.

So we have several of these sections that are

actually to the north on my client’s property, and it

appears that only the fence is at the front of the

property, may or may not be. It says 2 inches plus or

minus and one inch plus or minus below that. But

because it’s not precise, I think the Court needs to

look at the two subsequent surveys that my client

has provided.

My client provided one survey that shows that the

fence is truly on his side of the property and that’s

Exhibit C. Your Honor, | have cut it in half just for

purposes of fitting it on the exhibit, but I do have full

survey if you like to see it.

THE COURT: Did you see copy of this?

MR.CAI: Yes. I explain more clearly.

THE COURT: Now, is this done about the same time

1s the one in MR.Cai’s paper’?

MR.GOLDEN: The survey that I’m showing.

THE COURT: This is done a month later?

MR.GOLDEN: August 21.

THE COURT: One month later. In both surveys the

concrete wall and vinyl fence were already --

MR.CAI: Yes.

THE COURT: -- finished, correct?

MR.GOLDEN: Correct.

THE COURT: Now looking at the same thing.

MR.GOLDEN: On this particular property survey,

MR.Cai’s property is to the left and MR.Uddin’s

property is to the right, and if you notice the viny]

fence is to the right of the property line.

MR.CAI: Okay. Judge.

THE COURT: Okay. Hold on a second.

“te:

MR.GOLDEN: It doesn’t say plus or minus. It clearly

shows that tho vinyl fence .e is to the north of the

property line on my client’s property.

THE COURT: The vinyl fence being represented by a

narrow line with dots.

MR.GOLDEN: That’s correct. Now, your Honor, in

Exhibit D, we had a subsequent survey done on

October 3, 2007, and I have full survey here for you.

I’ve added a yellow sheet just to mark the plaintiff's

and defendant’s property. I’ve already shown that to

MR.Cai. If you notice on this particular survey taken

in October of ‘07, it clearly indicates, without

equivocation] that the vinyl fence is on the property

line. And it says on the property lines. Now if you

notice there is a driveway here.

THE COURT: I’m trying to find that way. I see vinyl

fence. Now on the previous one there’s mention of

metal fence.

MR.GOLDEN: Where do you see metal?

THE COURT: On the one done in August, and |

think also -- yes, one done in July. [It says metal

fence from the sidewalk.

MR.GOLDEN: I’m looking at vinyl fence. Are you

looking -

THE COURT: No. No. The one done -- oh, I see. Wait.

Wait. The one done in July by MR.Cai --

MR.GOLDEN: July 20, 2007.

THE COURT: -- shows metal fence, PBC fence post --

oh, yes. In the back it shows metal fence, but along

the side It shows PBC. I know. Is there a metal fence

there?

MR.GOLDEN: Not anymore.

THE COURT: MR.Cai, why does that say metal

fence?

MR.CAI: [I want to give you clear crystal clear

explanation of the survey number means, because

since I’m engineer, 1 know which key number you

looking for. The key number is in front of my house

and my property line is 2.6 feet.

-113-

THE COURT: I got that point already.

MR.CAI: And this cross all surveys, including the

survey provided by Jamil, except it’s either C or D,

it's A and P, that the company made survey. You see

2.6 feet away from my house the property line. That

the key number we are talking about here. Since

there are five surveys supporting that number 2.6

feet away from my house.

MR.GOLDEN: I don’t see that.

MR.CAI: You don’t see it?

THE COURT: Which survey do we see that on?

MR.CAI: Everybody see that number 2.6?

MR.GOLDEN: No.

MR.CAI: I show you Exhibit B first, my motion. Take

Exhibit B. You find 2.6 in the front of the house and

property line.

MR.GOLDEN: This is the old.

MR.CATI: Yes. Take a look. Do you see 2.60?

MR.GOLDEN: No.

MR.CAI: No. I show you.

MR.GOLDEN: That’s 260.

MR.CAI: 2.601 feet. This is key number. The key

number is how far property line, how far away from

my house. If you -- we accept that 2.6 number, that

number is consistently crossed all five surveys. And

take look at C, my Exhibit C, motion C. Here it says

2 feet 7-inch and a quarter. Seven-inch and a

quarter equal 2.601. So his 2.601 feet so basically

still stand 2.6 feet away from my house. Then take a

look at Exhibit E, my motion. It also say that 2.60

south. My motion Exhibit E either says 2.6. That is

key number.

THE COURT: Got it. So you’re saying how far is he

on your side.

MR.CAI: Yes.

THE COURT: How far are you saying that your

proof shows? That it is over 2 inches?

MR.CAIT: Yes.

THE COURT: That’s the number you seem to use.

-114-

MR.CAI: I told you the number. In his survey he has

two surveys. One survey marked 2.60 feet in the A

and P company. And I have no argument about that.

It’s good. That is all I want, 2.5 feet. So right now we

have five surveys match each other to property line

is 2.6 feet away from my house. End of story. The

only problem in the another survey, he claim that

the number is hard to read, but I point to you it’s in

Exhibit C in his response. Exhibit C is 2.5 feet away

from my house. That the only odd survey here. You

get 2.5.

THE COURT: Yes. I see it. 2.5.

MR.CAI: S.

THE COURT: Apostrophe S.

MR.GOLDEN: Where is that?

THE COURT: On the survey done on August 21. I

don't know if that’s from the property line or from

the fence. assume from the property line.

MR.GOLDEN: A and P.

THE COURT: Albert Bianco.

MR.GOLDEN: 2.5, where is that?

THE COURT: Written below the line delineating his

house. 2.5 apostrophe S for south. I believe.

MR.CAI: Judge, all I know is 2.6.

MR.GOLDEN: That’s not where you're looking at.

2.5, that’s not the property line. We're looking at

vinyl fence and that line, that thicker line next to the

vinyl fence is property line. That 2.5 is pointing to

the -- looks like to the structure of the house.

MR.CAI: Property line to the house.

THE COURT: Well, I couldn’t swear either way to

what it refers to. I see it though. I see what it says

2.5 apostrophe S and the other 2.6.

MR.CAI: We have one says 2.6.

MR.GOLDEN: Wait a second.

THE COURT: We're just saying it equates to the 2

feet 7 and one quarter inch; is that correct?

sits.

MR.GOLDEN: Your Honor, I’m not sure what that

2.5 represents, but | do know that there are two

separate lines showing vinyl fence and property line.

THE COURT: It shows the vinyl fence north --

MR.GOLDEN: And the vinyl fence --

THE COURT: -- north of the property line.

MR.GOLDEN: Viny! fence is north side, which is on

My clhient’s side of the property. Is that clear?

THE COURT: What -- that’s what it looks like.

MR.CAIL: Judge, that survey has been a problem. |

would point out to you later. I want to point out in

this photo, my aging post here is 2.6. If not accept

2.6, my fence was taken down here is .5 -- 6. If you

accept 2.5, my fence was cut. Iron fence was cut.

THE COURT: Did you understand that?

MR.GOLDEN: No.

THE COURT: I’m not sure what you're saying. I see

the old post and you're saying what, it’s 2.6?

MR.CAI: 2.6 here. If you accept the 2.6 this post will

stand.

THE COURT: You're saying that the vinyl post is

onto your side?

MR.CAI: Yes.

THE COURT: The old post was completely on your

side.

MR.CAI: Yes.

THE COURT: Therefore the vinyl] post is, according

to this picture, also further onto your side.

MR.CATI: Yes.

THE COURT: Okay. That’s --

MR.GOLDEN: But, your Honor, the two surveys

that we’re showing you clearly indicates that the

vinyl fence is to the north of the property line onto

my client’s

property. The other problem, your Honor, is that

MR.Cai’s survey clearly is not certain as to the

overlap if, in fact, there 1s an overlap.

-116-

He’s saying plus or minus and we’re talking about

an inch to two inches at most. There’s one indication

that the fence is to the south by one inch plus or

minus and the other by 2 inches plus or minus, but

that’s only on one section of the fence. The other

fence shows that. it’s to the north onto my client’s

property.

Your Honor, before we appeared before you, I tried

to get an understanding of what MR.CAI’s position is.

Obviously, we’re not interfering with his use of the

property in any way, shape or form. In his papers he

seems to indicate that he’s concerned that he would

lose a portion of his property.

Your Honor, we have no problem in stipulating

that we’re making no adverse claim to any portion of

his property, but in light of the work that we did on

the property line and the efforts that we did to get a

survey and the de minimis if, at any, encroachment

onto the neighboring property, that to give the

plaintiff $5,000 plus taking down the wall, it creates

undue hardship on the part of my client.

And quite frankly, your Honor, my two surveys

dispute his survey, which is on its face ambiguous,

indicating that this measurement is plus or minus,

plus or minus what. We’re only talking about an inch

or two. So it’s very possible I’m sure if we had his

survey in court, which we don’t, his survey may

acknowledge that he could have been off two inches.

MR.CAI: Judge.

MR.GOLDEN: So at this point he’s failed to

establish that there has been any encroachment. But

as | said, your Honor, we have no problem in

stipulating to the

Court that we make no claim of adverse possession

to any portion of the property south of the property

line between the plaintiff and the defendant.

MR.CAI: Judge.

THE COURT: Go ahead.

MR.CAI: My key point is key number 2.6. If we

insist --

Sipe

THE COURT: Start over again.

MR.CAI: My point is I need a latitude 2.6 feet away

from my house. That is the key number match five

surve

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