Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of plaintiff Mu Cheng Lau (Lau), filed on February 26, 2014, under motion sequence number one, for an order pursuant to CPLR 3212 granting summary judgment in Lau's favor as against defendants Yuen Keung Lai and Lee Yung Lai (hereinafter jointly the defendants) and (1) declaring that the defendants have trespassed on Lau's property; (2) granting a temporary restraining order, preliminary injunction and permanent injunction against the defendants; (3) [*2]scheduling a hearing on damages; and (4) awarding costs and disbursements.

- Notice of Motion

- Affirmation of counsel

- Exhibits 1 - 6

BACKGROUND

On May 30, 2013, Lau commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. The complaint contains thirty-nine allegations of fact in support of four causes of action. The first cause of action is for a declaratory judgment. The second cause of action seeks a temporary restraining order, a preliminary injunction and a permanent injunction. The third cause of action is pursuant to RPAPL 841for nuisance. The fourth cause of action is for trespass.

By verified answer dated July 10, 2013, the defendants have joined issue. The answer asserts five affirmative defenses and no counterclaims.

The complaint alleges that Lau owns property located at 8612 Bay16th Brooklyn, New York that adjoins the defendants' property located at 8614 Bay16th Brooklyn, New York. It further alleges that the defendants "caused to be" placed a fence (the fence) on Lau's property without his permission and have refused Lau's demands to remove it.

MOTION PAPERS

Lau's motion papers consists of a notice of motion, his affidavit, an affirmation of his counsel and five annexed exhibits labeled 1 through 6. Exhibit 1 is described as a survey of Lau's property. Exhibit 2 contains two photographs depicting the fence. Exhibit 3 is a letter sent from Lau's counsel addressed to the defendants demanding that they remove the fence. Exhibit 4 is a copy of the deed for Lau's property. Exhibit 5 is a copy of the summons and verified complaint. Exhibit 6 is the defendants' answer.

LAW AND APPLICATION

Lau's motion seeks, among other thing, injunctive relief against the defendants and summary judgment declaring that they have trespassed and created a nuisance on his property. The pleadings, deed and Lau's affidavits establish that he owns the subject property and that the defendants own the adjoining property. His affidavit refers to two photographs and a survey which purports to show that the fence extends four inches onto his property.

The defendants did not appear on April 4, 2014, the date scheduled for oral argument of the motion, and did not submit opposition papers. Although the defendants are technically in default in opposing the motion it does not follow that Lau's motion must be granted.

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been [*3]made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 at 324 [1986]).

"A summary judgment motion should not be granted merely because the party against whom judgment is sought failed to submit papers in opposition to the motion (i.e., "defaulted") (Vermont Teddy Bear Co. v 1-800 Beargram Co., 373 F3d 241, 244 [2d Cir 2004] ["the failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment" (Liberty Taxi Mgt., Inc. v Gincherman, 32 AD3d 276 [1st Dept 2006]). "Instead, the . . . court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law"] see Cugini v System Lbr. Co., 111 AD2d 114, 115 [1st Dept 1985], appeal dismissed 65 NY2d 1053 [1985] ["A movant's failure to sufficiently demonstrate its right to summary judgment requires a denial of the motion regardless of the sufficiency, or lack thereof, of the opposing papers"]" (Liberty Taxi Mgt., Inc. v Gincherman, 32 AD3d 276 [1st Dept 2006]).

Motion for Declaratory Judgment

Pursuant to CPLR 3001, the Supreme Court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed. To constitute a "justiciable controversy," there must be a real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect (see Chanos v MADAC, LLC, 74 AD3d 1007, 1008 [2nd Dept 2010]). The primary purpose of a declaratory judgment is to stabilize an uncertain or disputed jural relationship with respect to present or prospective obligations (Chanos v MADAC, LLC, 74 AD3d 1007, 1008 [2nd Dept 2010] citing Goodman v Reisch, 220 AD2d 383 [2nd Dept 1995]).

"Where there is no necessity for resorting to the declaratory judgment it should not be employed" (Hesse v Speece, 204 AD2d 514, 515 [2nd Dept 1994] citing James v Alderton Dock Yards, 256 NY 298, 305 [1931]). Inasmuch as the issue in controversy will be resolved with the resolution of the causes of action for trespass and nuisance, there is no need to resort to a declaratory judgment to resolve the dispute.

Furthermore, a declaratory judgment is ex vi termini a judgment on the merits (Dupigny v St. Louis, 115 AD3d 638, 640 [2nd Dept 2014]). Until disputed questions of fact necessary to be determined before judgment can be rendered are settled, it is plain that rights and legal relations cannot be determined, defined and declared (Id.).

Motion for Summary Judgment

The gravamen of Lau's complaint is that the defendants, without his permission, caused a fence to be built on his property and that they have refused to remove it. The deed he has annexed shows that he purchased the property on February 23, 2005, with four other individuals. He did not, however, present any evidence establishing when the fence was constructed or who constructed it. Nor did he establish whether he still owns the property with these four other individuals, and if so, what they have to say about the fence.

The first and second affirmative defense of defendants answer alleges that the fence was in place when the parties respective properties were constructed in 2003 and before Lau purchased his property in 2005. Lau did not address these contentions. Lau annexed a survey to [*4]show the boundaries of his property and then used the boundaries to claim that it encroaches his property. However, the survey was not accompanied by an affidavit of a licensed surveyor attesting to its accuracy or interpreting and explaining its meaning. Therefore, the survey has no probative value (see Seaman v Three Vil. Garden Club, Inc., 67 AD3d 889 [2nd Dept 2009] citing Greenberg v Manlon Realty, 43 AD2d 968, 969 [2nd Dept 1974]).

The elements of a cause of action sounding in trespass are an intentional entry onto the land of another without justification or permission (Marone v Kally, 109 AD3d 880, 882 [2nd Dept 2013]). The elements of a private nuisance cause of action are (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act (Massaro v Jaina Network Systems, Inc. 106 AD3d 701, 703 [2nd Dept 2013]). Nuisance elements are generally questions for a jury unless the evidence is undisputed (see Gedney Commons Homeowners Assn., Inc. v Davis, 85 AD3d 854, 855 [2nd Dept 2011] citing Weinberg v Lombardi, 217 AD2d 579 [2nd Dept 1995]).

Without admissible evidence of the boundary lines of Lau's property, he cannot establish the fact that the fence encroaches on his land. He did not prove when the fence was built and who built it. Nor did he establish that the other owners of his property did not give permission for erecting it. He, therefore, did not eliminate all material issues of fact regarding the defendants alleged trespass and creation of a private nuisance. In sum, he did not establish that the defendants built the fence on his land without permission.

Lau made no showing that a declaratory judgment was necessary. Lau also failed to a prima facie showing that the defendants trespassed or created a private nuisance on his property. Therefore, Lau's motion for an order granting summary judgment must be denied regardless of the sufficiency, or lack thereof, of the defendants opposing papers (Liberty Taxi Mgt., Inc. v Gincherman, 32 AD3d 276 n1 [1st Dept 2006]).

Motion for Injunctive Relief

Lau has also asked for an order granting a temporary restraining order, a preliminary injunction and a permanent injunction. Pursuant to CPLR 6301, a temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss, or damage will result unless the defendant is restrained before the hearing can be held (Crescentini v. Slate Hill Biomass Energy, LLC, 113 AD3d 806 [2nd Dept 2014]). Lau submitted nothing to show that the defendants will or are causing immediate and irreparable injury, loss or damage to him. There is no basis for the granting of a temporary restraining order.

To obtain a preliminary injunction, a movant must establish, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) a balancing of the equities in the movant's favor (Arthur J. Gallagher & Co. v Marchese, 96 AD3d 791, 792-792 [2nd Dept 2012]). The purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual (County of Suffolk v Givens, 106 AD3d 943, 944 [2nd Dept 2013] citing Board of Mgrs. of the Britton Condominium v C.H.P.Y. Realty Assoc., 101 AD3d 917, 918 [2nd Dept 2012]). [*5]

By not making a prima facie showing of entitlement, Lau concomitantly did not establish the likelihood of his success on the merits of his cause of action for trespass and private nuisance. There is, therefore, no basis to issue a preliminary injunction. Similarly, he failed to make a prima facie showing of entitlement to summary judgment granting a permanent injunction.

Motion for Cost and Disbursements

Lau has also requested cost and disbursements. CPLR 8106 provides that costs upon a motion may be awarded to any party, in the discretion of the court, and absolutely or to abide the event of the action. CPLR 8101 provides that the party in whose favor a judgment is entered is entitled to costs in the action, unless otherwise provided by statute or unless the court determines that to so allow costs would not be equitable, under all of the circumstances (CPLR 8001). The party to whom costs are awarded is entitled to recover reasonable and necessary expenses as are taxable according to course and practice of the court, by express provision of law or by order of the court [CPLR 8301(a)]. Lau has not obtained a judgment in his favor and is, therefore, not entitled to costs pursuant to CPLR 8101or disbursements pursuant CPLR 8001. The court in an exercise of discretion declines to award cost in connection with the instant motion pursuant to CPLR 8106.

CONCLUSION

Lau's motion for an order and judgment declaring that the defendants have trespassed on his property is denied.

Lau's motion for an order granting summary judgment in his favor against the defendants on his cause of action for trespass and private nuisance and ordering an inquest on damages is denied.

Lau's motion for a temporary restraining order, preliminary injunction and permanent injunction restraining the defendants is denied.

Lau's motion for an order awarding costs and disbursements is denied.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.