In S.L. v. M.O., the Appellate Division, Second Department, reviewed a property dispute between neighbors involving alleged water damage and a fence encroachment.
S.L. filed suit against M.O. and other adjacent property owners, claiming that during the construction of their home in 2018, they raised the elevation of their land in a way that caused water to flow onto his property, resulting in pooling on his driveway and yard. He also alleged that a vinyl fence installed by the defendants extended onto his land. The complaint included claims for private nuisance, trespass, injury to property, and a request for injunctive relief.
The defendants moved for summary judgment to dismiss all claims. The Nassau County Supreme Court denied the motion in full, and M.O. appealed. On review, the appellate court modified the lower court’s decision.
The AD2 found that M.O. was entitled to summary judgment on the claims for private nuisance and injury to property. Their expert engineer inspected both parcels and concluded that the pooling of water was not caused by M.O.’s property but was instead due to the configuration of S.L.’s own land. This satisfied the defendants’ burden to show they were not responsible for the alleged damage, and S.L. failed to present sufficient evidence to raise a factual dispute.
However, the court upheld the trespass claim. M.O. had submitted a survey showing that the vinyl fence encroached approximately eight inches onto S.L.’s property. Even though the encroachment was minor, it was still legally actionable. M.O. also failed to prove that they had acquired title to the disputed strip through adverse possession. They had not possessed the land for the required ten-year period and could not rely on their predecessor’s possession without evidence of intentional transfer.
As for the request for injunctive relief to compel removal of the fence, the court sided with M.O., holding that the encroachment was de minimis and did not justify such a remedy. S.L. did not provide sufficient evidence to challenge that conclusion.
In summary, the court dismissed the claims for private nuisance, injury to property, and injunctive relief, but allowed the trespass claim to proceed.
Because "love thy neighbor" has limits?
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DECISION