Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 1, 2026

2024-00802, (Index No. 721226/22)

Angela G. Iannacci, J.P.

Linda Christopher

Carl J. Landicino

Phillip Hom, JJ.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for trespass, nuisance, and negligence, the defendants A & T Engineering, P.C., and Robert H. Lin appeal from an order of the Supreme Court, Queens County (Laurentina S. McKetney Butler, J.), entered October 3, 2023. The order, insofar as appealed from, denied the cross-motion of the defendants A & T Engineering, P.C., and Robert H. Lin pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the cross-motion of the defendants A & T Engineering, P.C., and Robert H. Lin which was pursuant to CPLR 3211(a) to dismiss the demand for punitive damages insofar as asserted against them, and substituting therefor a provision granting that branch of the cross-motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

In October 2022, the plaintiff commenced this action against the defendants A & T Engineering, P.C., and Robert H. Lin (hereinafter together the defendants), among others, inter alia, to recover damages for negligence, trespass, and private nuisance and for injunctive and declaratory relief. The complaint alleged, among other things, that the defendants were responsible for the engineering plans and for supervising the demolition and construction activities on property that shared an adjoining wall with the plaintiff's property located in Queens. The demolition and construction activity allegedly caused the plaintiff's property to become structurally unstable.

The defendants cross-moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them. In an order entered October 3, 2023, the Supreme Court, inter alia, denied the defendants' cross-motion. The defendants appeal.

"On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory" (Gorbatov v Tsirelman, 155 AD3d 836, 837; see City of Long Beach v Agostisi, 221 AD3d 776, 779). Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) and the motion is not converted to one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the [*2]plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal shall not eventuate (see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275; MJ Lilly Assoc., LLC v Ovis Creative, LLC, 221 AD3d 805, 807). "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" (Gorbatov v Tsirelman, 155 AD3d at 837 [internal quotation marks omitted]; see Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38).

"Under CPLR 3211(a)(1), a dismissal is warranted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Bianco v Law Offs. of Yuri Prakhin, 189 AD3d 1326, 1327-1328; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). To constitute documentary evidence, the evidence must be "unambiguous, authentic, and undeniable," such as "judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, [and] contracts" (Phillips v Taco Bell Corp., 152 AD3d 806, 807 [internal quotation marks omitted]; see Granizo v Krystal Fruits & Vegetables, Inc., 238 AD3d 719, 720).

The Supreme Court properly denied those branches of the defendants' cross-motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the second, third, and sixth causes of action, each alleging trespass, insofar as asserted against them. "The elements of a cause of action sounding in trespass are an intentional entry onto the land of another without justification or permission, or a refusal to leave after permission has been granted but thereafter withdrawn" (Del Vecchio v Gangi, 225 AD3d 666, 669 [internal quotation marks omitted]; see 25-86 41st St., LLC v Guzman, 234 AD3d 649, 651). "The invasion of, or intrusion upon, the property interest must at least be the immediate or inevitable consequence of what [the defendant] willfully does, or which he [or she] does so negligently" (Chaikin v Karipas, 162 AD3d 842, 843 [internal quotation marks omitted]).

Here, the complaint adequately alleged facts that fit within a cognizable legal theory of trespass (see Del Vecchio v Gangi, 225 AD3d at 669). The defendants' submissions failed to show that a material fact as claimed by the plaintiff was not a fact at all (see Guggenheimer v Ginzburg, 43 NY2d at 274-275; MJ Lilly Assoc., LLC v Ovis Creative, LLC, 221 AD3d at 807). The defendants' documentary evidence also failed to utterly refute the plaintiff's contentions and failed to conclusively establish a defense as a matter of law (see Bianco v Law Offs. of Yuri Prakhin, 189 AD3d at 1327-1328).

The Supreme Court also properly denied those branches of the defendants' cross-motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the fourth, fifth, and seventh causes of action, each alleging nuisance, insofar as asserted against them. "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" (Redwood Prop. Holdings, LLC v Christopher, 211 AD3d 758, 759 [internal quotation marks omitted]; see Curry v Matranga, 194 AD3d 1011, 1012-1013). "Except for the issue of whether the plaintiff has the requisite property interest, each of the other elements is a question for the jury, unless the evidence is undisputed" (Curry v Matranga, 194 AD3d at 1013 [alteration and internal quotation marks omitted]).

Here, the complaint adequately alleged facts that fit within a cognizable legal theory of nuisance. The defendants' evidentiary submissions failed to demonstrate that material facts claimed by the plaintiff were not facts at all (see Redwood Prop. Holdings, LLC v Christopher, 211 AD3d at 759). Likewise, the defendants' documentary evidence failed to utterly refute the allegations in the complaint and failed to establish a defense as a matter of law (see Russo v Crisona, 219 AD3d 920, 922).

The Supreme Court properly determined that the complaint adequately alleged a cause of action alleging negligence. "To prevail on a cause of action alleging negligence, a plaintiff must [*3]establish the existence of a legal duty, a breach of that duty, proximate causation, and damages" (Doe v Educational Inst. Oholei Torah, 235 AD3d 843, 844; see PNC Bank, N.A. v Steinhardt, 159 AD3d 999, 1000). The complaint adequately alleged facts that fit within a cognizable cause of action alleging negligence (see Magee-Boyle v Reliastar Life Ins. Co. of N.Y., 173 AD3d 1157, 1160). The defendants' evidentiary submissions did not demonstrate that a material fact as claimed was not a fact at all (see Guggenheimer v Ginzburg, 43 NY2d at 274-275; MJ Lilly Assoc., LLC v Ovis Creative, LLC, 221 AD3d at 807), nor did the submissions utterly refute the plaintiff's contentions for negligence (see Bianco v Law Offs. of Yuri Prakhin, 189 AD3d at 1327-1328). Contrary to the defendants' contention, the cause of action alleging negligence was not duplicative of the cause of action alleging breach of contract (see Broecker v Conklin Prop., LLC, 189 AD3d 751, 753).

The Supreme Court properly denied that branch of the defendants' cross-motion which was to dismiss the cause of action for a declaratory judgment. "A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration" (Indymac Venture, LLC v Nagessar, 121 AD3d 945, 946 [internal quotation marks omitted]; see Ciaccio v Wright-Ciaccio, 211 AD3d 900, 901). "Thus, where a cause of action is sufficient to invoke the court's power to render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy, a motion to dismiss that cause of action should be denied" (Ciaccio v Wright-Ciaccio, 211 AD3d at 901-902 [internal quotation marks omitted]). Here, the complaint adequately set forth a cause of action for declaratory relief (see 88-18 Tropical Restaurante Corp. v Utica First Ins. Co., 223 AD3d 772, 774). Contrary to the defendants' contention, their documentary evidence did not utterly refute the plaintiff's factual allegations in the complaint (see Johnson v 275 Clermont, LLC, 235 AD3d 731, 733).

However, the Supreme Court should have granted dismissal of the demand for punitive damages. "Punitive damages are permitted when the defendant's wrongdoing is not simply intentional but evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations" (Dash Windows of L.I., Inc. v Bivona, 216 AD3d 915, 916 [internal quotation marks omitted]). "The misconduct must be exceptional, as when the wrongdoer has acted maliciously, wantonly, or with a recklessness that betokens an improper motive or vindictiveness . . . or has engaged in outrageous or oppressive intentional misconduct or with reckless or wanton disregard of safety or rights" (id. [internal quotation marks omitted]). Here, the plaintiff's conclusory allegations that the defendants' conduct was wanton, reckless, and affected the public were insufficient to sustain the demand for punitive damages (see Neurological Surgery, P.C. v Group Health Inc., 224 AD3d 697, 700; Seymour v Hovnanian, 211 AD3d 549, 557).

IANNACCI, J.P., CHRISTOPHER, LANDICINO and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court