Chaikin v. Karipas
Supreme Court of the State of New York, Appellate Division, Second Department, June 20, 2018
The parties are owners of adjacent parcels of real property that are separated by a retaining wall on plaintiff’s property. Plaintiffs commenced action for injunctive relief and to recover damages for private nuisance, trespass, and negligence. The retaining wall was in danger of collapsing due to the “load, pressure, weight and force” from defendants’ property. Defendants moved to dismiss the complaint, Supreme Court granted the motion, and plaintiffs moved for leave to replead. On motion, plaintiffs alleged that defendants (1) engaged in digging, excavating, grading and altering the soil past the property line, (2) planted bushes, shrubs and trees and added mulch on plaintiff’s property, and (3) excessively watered the location where the work was done. The lateral load and pressure was increased from the planting so as to damage the wall. Supreme Court denied plaintiffs motion for leave to replead and granted defendants cross motion to impose sanctions. Plaintiffs appeal from all three orders. This Court affirms dismissal finding that complaint was insufficient to state a cause of action for private nuisance, trespass and negligence, but reverses on the Supreme Court’s denial of leave to replead finding it had merit.