[*1]
Valle v Haimowitz
2014 NY Slip Op 51304(U) [44 Misc 3d 141(A)]
Decided on August 18, 2014
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on August 18, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-293 K C

Gloria Valle, Appellant,

against

Howard Haimowitz, Respondent.


Appeal from a judgment of the Civil Court of the City of New York, Kings County (Nancy M. Bannon, J.), entered September 19, 2011. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is reversed, without costs, judgment is awarded to plaintiff on the issue of defendant's liability and the matter is remitted to the Civil Court for a new trial limited to the issue of damages.

In this small claims action, plaintiff seeks to recover the principal sum of $1,500. At a nonjury trial, it was uncontested that the parties owned and resided in adjoining


houses. Plaintiff testified that water running from an open faucet on defendant's second-floor porch had intruded onto her property, penetrated the exterior wall of her second-floor porch, and leaked down into her first-floor dining room, where it had damaged her ceiling and floor. Defendant and his brother, David Haimowitz, both testified that David Haimowitz had, on one occasion, turned on defendant's hose and forgotten to turn it off for approximately half an hour. Defendant did not dispute his responsibility for his brother's actions; nor did he deny that water had run from his hose or faucet onto plaintiff's porch and into her house. Defendant suggested, however, that the situation was not worse than it might have been in the event of a rainstorm with heavy winds hitting plaintiff's porch, and contended that any damage to plaintiff's property had been caused by defects in the construction of her porch. Following the trial, the Civil Court dismissed the action.

The intrusion of water from one property to a neighboring property constitutes a trespass (see Marinaccio v Town of Clarence, 20 NY3d 506, 509 [2013]; Crown Assoc., Inc. v Zot, LLC, 83 AD3d 765, 768 [2011]). "Trespass does not require an intent to produce the damaging consequences, merely intent to perform the act that produces the unlawful invasion" (Berenger v 261 W. LLC, 93 AD3d 175, 181 [2012]). Since, in his testimony, defendant did not dispute responsibility for his brother's action in opening his spigot, and also admitted that water had run from his property onto plaintiff's porch, he, in effect, admitted liability for the trespass onto plaintiff's property. As the fact of the trespass was not disputed, we find that the dismissal of the action failed to render substantial justice between the parties according to the rules and principles of substantive law (see CCA 1804, 1807), since, even where no actual injury is established, [*2]nominal damages are presumed from a trespass (Hill v Raziano, 63 AD3d 682, 683 [2009]).

"The traditional measure of damage to real property due to trespass is the lesser of the diminution in value of the property or the cost to repair, with plaintiff bearing the burden to prove one or the other" (104 NY Jur 2d, Trespass § 54). In the Small Claims Part of the Civil Court, "An itemized bill or invoice, receipted or marked paid, or two itemized estimates for services or repairs, are admissible in evidence and are prima facie evidence of the reasonable value and necessity of such services and repairs" (CCA 1804). While the trial transcript indicates that plaintiff showed the court a cancelled check and a contract, they are not included in the record, and it is unclear whether these items were admitted into evidence. Consequently, we are unable to determine whether the items plaintiff had in court were adequate to establish that plaintiff had sustained losses which had been proximately caused by defendant's trespass, or the amount of the actual damages plaintiff had sustained thereby, if any.

Accordingly, the judgment is reversed, judgment is awarded to plaintiff on the issue of defendant's liability, and the matter is remitted to the Civil Court for a new trial limited to the issue of damages.

Pesce, P.J., Aliotta and Elliot, JJ., concur.


Decision Date: August 18, 2014