Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered September 11, 2012. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

In this small claims action based on an alleged encroachment by defendants, plaintiff's adjacent neighbors, plaintiff seeks to recover the cost of a survey and legal fees. After a nonjury trial, the Civil Court dismissed the action. Upon a review of the record, we find that the judgment rendered substantial justice between the parties in accordance with the rules and principles of substantive law (CCA 1804, 1807). While the Civil Court, in dismissing the action, found that the one- to two-inch encroachment in this case should be deemed de minimis (see Matter of Zhuang Li Cai v Uddin, 58 AD3d 746 [2009] Hoffmann Invs. Corp. v Yuval, 33 AD3d 511 [2006]), we need not pass on the propriety of this determination, since, even if defendants' liability were established, plaintiff failed to establish his damages.

Monetary damages in an encroachment action are measured by the difference between the value of the plaintiff's property subject to the alleged encroachment and the value of the property absent the encroachment (see L. Smirlock Realty Corp. v Title Guarantee Co., 97 AD2d 208 [1983], mod on other grounds 63 NY2d 955 [1984] Christopher v Rosse, 91 AD2d 768 [1982] Lawrence v Mullen, 40 AD2d 871 [1972]). Here, plaintiff failed to produce any evidence of a diminution in the value of the property resulting from the alleged encroachment (see Generalow v Steinberger, 131 AD2d 634 [1987]) and the expenses sought by plaintiff are not recoverable as damages for the encroachment.

Accordingly, the judgment is affirmed.

Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: January 10, 2014