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
1
A
y
AblSla’
Upposition to move t Oi
UPREME (
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preme Court
After a full}
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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
K“xhibit A: Agreement signed by Vir. dumil
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''Format enlargement 2.6 property line, 175’ to 38
ave, Upside is 60st!!
Affe
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.
fyt}
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
luxhibit L Show the middle original post and se
property mark (Orange cut). !!Format note: Th
orange cut is a cross “+” near bottom of this photo!!
=_
‘Se ai
- :
- 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
Exhibit
xhibit B:
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AREA=2,500.0 SO.FT. 20.0574 ACRES
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Surveyed For JAMIL UODIN
Surveyed AUGUST 21, 2007 = FINAL SURVEY
Surveyed
Ly [he
WOODSIDE
QUEENS
Guaranteed To ABOVE, Ed
, ALBERT A. BLANCO
Professional Land Surveyor - City Surveyor
BROGKL YN-QUEENS-BRONX-MANtHATTAN-STATEN ISLAND-NASSAU-SUFFOLA
INWOOD, NASSAU NY 1199 ‘
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vinyl fence, upside is 60st!!
JINIZ TANIA
00°00!
i xhibit D
" URVOY 1S INTENDS j » FOR TITLE 4 “i
ct i WreliVLH A MOR owt Le sara
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LOULT & PROUE MS FOR wc HVyYOR wi rar i
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DAIE: OCTOBER 3, 2007
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ENGINEERING ANO LAND SURVEYING, FP ¢
150-18 HULSIE AVENUT
JAMAICA, WHY 1313452
TELEPHONE (716) 657-0444
Fax (718) 657-8555 An
SURVEY No. 9954
— — — + ——_+4 |
BOROUGH OF QUEENS TAX MAP PILED MAP’
OUMTY OF QUEEN SFCTION rCTION ‘
TATE OF NEW YORK & OCK 1215 BLOCK — —
Lor 7h Lor “fe Ler Z a ~ oe
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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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