Plaintiff, Brooklyn Design Center, LLC, moves by order to show cause for an order,

(a)directing that on or before a date certain, that defendant completely remove

at its owns expense all structures and buildings and obstructions erected or being within the easement of record that benefits the land owned by the plaintiff in this action and which burdens the property of defendant, known as 5002 Avenue N, Brooklyn, New York, located in the County of Kings. Said easement is more particularly described and set forth in prior orders of this court entered in the record of this action; and,

(b)directing that if defendant should fail to abide by said direction, that plaintiff

be permitted to carry out said direction at the defendant's expense; and,

(c) adjusting defendant Nutica, Ltd. and its officers to be in contempt for willful

disobedience of a court order and holding defendant Nutica, Ltd. and its officers in contempt for willful disobedience of a court order and punishing them by the imposition of fine, imprisonment or both, according to law; and,

(d)awarding motion costs and sanctions in favor of plaintiff and against the

defendant pursuant to CPLR 8106 and 22 NYCRR 130-1.1; and,

(e)such other, further and different relief in plaintiff's favor as this court deems

just an proper.

Defendant Nutica. Ltd. cross-moves for an order, assessing sanctions against the plaintiff for bringing a frivolous application before the court; directing that plaintiff not interfere with defendant's replacement of the sidewalk which goes immediately in front of the subject easement; and such and further relief as the court may deem just, proper and equitable.

A hearing was held before the undersigned in connection with this matter on September 28, 2005, September 29, 2005, October 6, 2005 and October 7, 2005.

This issues addressed and to be decided by this court are (1) whether defendant Nutica, Ltd ("Nutica") violated the permanent injunction by building a structure which encroached an easement of record that benefits the land owned by plaintiff; Brooklyn Design Center, LLC ("Brooklyn Design"), and burdens the land owned by Nutica; and (2) if there is such a violation, [*2]what remedy should be fashioned by the court.

The facts of the case are as follows:

Plaintiff, Brooklyn Design, located at 5006 Avenue N, Brooklyn, New York, is the owner of an easement which measures forty feet by four feet. Defendant, Nutica, located at 5002 Avenue N, owns the property over which the easement runs. The easement is plaintiff's means of ingress and egress to its warehouse at the aforementioned address.

Defendant, Nutica became the owner of its property on November 16, 2000. In 2001, defendant began to block plaintiff's access to the easement by placing a chain link fence along the area. As a result, plaintiff commenced the within action to, inter alia,

quiet title; permanently enjoin Nutica from encroaching the easement; for money damages

By order dated January 27, 2003, Brooklyn Design was awarded summary judgment on its first and second causes of action. The order states, in relevant part:

ORDERED, that the plaintiff's said motion is granted in its entirely; and it is further

ORDERED., that plaintiff Brooklyn Design Center, LLC is the owner of the premises known as 5006 Avenue N, Brooklyn, New York and more particularly described in Exhibit "A" annexed hereto (hereinafter "Plaintiff's Property") and that defendant Nutica, Ltd. is the owner of the premises known as 5002 Avenue N, Brooklyn, New York and more particularly described in Exhibit "B" annexed hereto (hereinafter: Defendant Property"): and it is further

ORDERED, that a valid, existing and enforceable easement which is more particularly described in Exhibits "A" and "C" annexed hereto and in instruments recorded with the office of the City Register in Kings County, New York at Reel 1941, Page 315 and Reel 1941, Page 312 exists as a benefit to Plaintiff's Property and as a burden to Defendant's Property (said easement is hereinafter referred to as "Easement") and that said Easement is perpetual in duration and runs with the land: and it is further

ORDERED, that defendant Nutica, Ltd. is hereby permanently enjoined and restrained from interfering with the plaintiff or its successors and assigns in the use or quiet enjoyment of the Easement.

Subsequent to the permanent injunction being issued by the court, defendant Nutica constructed a cinder block building which, plaintiff contends, encroaches onto the northernmost four inches of plaintiff's easement.

The evidence at trial supports plaintiff's position that defendant's building

encroaches onto the easement. Plaintiff offered testimony from John Bernadone, a land surveying expert. Based upon surveys done at the locations of the various buildings and

of the easement, there is a clear indication that defendant's building is constructed in such

Defendant presented testimony from a land surveying expert, Gerald O'Buckley. Mr. O'Buckley testified as to the method he employed to determine where the various property lines are. He explained that he tries to hold existing property lines. His second method of determining property lines was to create a template of the properties and shift it until it fit. Mr. O'Buckley's testimony, however, needs to be discounted by this court since he also testified that his margin for error on surveys is one foot in either direction. According to Mr. O'Buckley, measurements could go six inches either way. The claim here is that the defendant encroaches four inches into the easement. Mr. O'Buckley's margin for error is greater than the area being claimed. Therefore, his testimony as to where the easement is and where the property lines are is unreliable.

Based upon John Bernadone's testimony there is prima facie proof of an encroachment onto plaintiff's easement. The photographic evidence and measurements

depicted also indicate that there is an encroachment onto the easement.

Plaintiff's building is used as an art warehouse. Brooklyn Design houses both large and small works of art, many from well-known artists. They are stored in a specifically designed underground vault in the building. At the time Nutica began construction of its building, Brooklyn Design's door to its building was already in place. The four inch encroachment results in plaintiff having reduced access to the door to its building.

There is really no question that defendant's building encroaches four inches onto plaintiff's easement at the northernmost part. That being established, the more pressing dilemma for this court is the appropriate remedy for defendant's violation of the permanent injunction previously issued.

Plaintiff seeks to have defendant held in civil contempt of court for the violation of the injunction. Defendant contends that inasmuch as civil contempt requires a finding by the court of willfulness, and that defendant's actions were not per se willful, the court cannot render a finding of contempt. Defendant further maintains that any harm or damage caused by the encroachment is de minimus at best in that plaintiff has successfully managed to get their artwork in and out of their building, and more specifically through the doorway, long after defendant's building was completed. Defendant also contends that bitter acrimony which exists between the parties is a great deal responsible for the instant proceeding.

Plaintiff is nonetheless entitled to the easement that is rightfully and legally theirs. Plaintiff is entitled to the entire easement, not just a portion of it. As this court stated during the trial, " Taking of property is under our laws something that is not done lightly." That being said, this court must fashion a remedy herein.

A party seeking to hold another in civil contempt bears the burden of proof (see McCain v. Dinkins, 84 NY2d 216, 227, 616 NYS2d 335, 639 NE2d 1132; Vujovic v. Vijovic, 16 AD3d 490, 791 NYS2d 648; Rupp-Elmasri v. Elmasri, 305 AD3d 394, 395, 758 NYS2d 524). In order to prevail on a motion to hold another in civil contempt, "the

movant must demonstrate that the party charged violated a clear and unequivocal court

Judiciary Law § 753 confers upon the court the power to punish for civil contempt, and reads in relevant part:

"A.A court record has power to punish, by fine and imprisonment, or either, a

neglect or violation of duty, or other misconduct by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, . . . ."

The court finds that plaintiff has met its burden of proof to the court's satisfaction that defendant Nutica is found to be in civil contempt for violating the permanent injunction issued herein, by building onto plaintiff's easement, notwithstanding the fact that defendant Nutica alleges a lack of willfulness on its part. Nutica improperly erected its building at its

own risk and to its own peril. Consequently, defendant "defeated, impaired, impeded, and

6

prejudiced a right" belonging to plaintiff (Judiciary Law § 753[A]). Furthermore, plaintiff is entitled to full and complete use of the easement. The reasoning set forth in Hullar v. Glider Oil Company, Inc. 219 AD2d 825, 631, NYS2d 971 (4th Dept. 1995), is likewise applicable here. The Appellate Division found that although only nominal damage was done to owner of land on which two concrete islands were erected in violation of terms of recorded easement, the owner was entitled to an injunction directing their removal; islands constituted unlawful appropriation and occupation of land and continuing trespass, and the

owner was entitled to full and complete use of all parts of land, unobstructed by any permanent structures. This court does not make a finding in the instant case that plaintiff sustained only nominal damage.

Accordingly, defendant Nutica is directed to remove the portion of their building, that encroaches onto plaintiff's easement, at their sole cost and expense, as quickly as is reasonably possible, but in any event no later than eight months from the date of notice of entry of the within decision. Should defendant fail to do so, the court will entertain an application by plaintiff for the imposition of fines, sanctions, and/or other remedies permitted under the law.

The branch of plaintiff's motion seeking costs and sanctions is denied.

Defendant's cross-motion is denied.

This constitutes the Decision, Opinion, and Order of the Court. [*5]

Dated: January 6, 2006

______________________________

IRA B. HARKAVY

J.S.C.