In 1212 Ocean Ave. Hous. Dev. Corp. v. Brunatti , Ocean Avenue Housing (OAH) filed suit against Deborah Brunatti alleging "nuisance, trespass, and negligence."
Brunatti and OAH owned adjoining property which was separated by a "retaining wall." An elm tree, located on Brunatti's property, leaned against the wall and the tree's roots supposedly caused structural damage.
In 2004, when the Department of Buildings ordered OAH to fix the retaining wall, the corporation started a case against its neighbor to recover the repair costs.
Brunatti contended that the roots weren't the cause of the problem and, because it failed to attempt a fix, OAH was precluded from seeking a recovery.
When the Kings County Supreme Court denied her request to dismiss the case, Brunatti appealed to the Appellate Division, Second Department.
Since her experts' reports -- which purportedly showed the tree's roots didn't damage the wall -- weren't in proper form, they couldn't be considered by the court. Nor could she show that a fix by OAH was "practicable" given that the "roots rested entirely on her property." Interestingly, Brunatti was successful in getting OAH's trespass claims dismissed for that same reason. "Since the tree roots rested entirely upon the Brunatti's property, there was no intentional intrusion or entry ... which could constitute trespass."
OAH!
To download a copy of the Appellate Division's decision, please use this link: 1212 Ocean Ave. Hous. Dev. Corp. v. Brunatti