Krakovski v. Stavros Assoc., LLC

Summary

The Appellate Division, Second Department modified an order dismissing the plaintiff's amended complaint alleging private nuisance and trespass arising from ventilation pipes and boiler exhaust at adjoining properties. The court held that the amended complaint stated viable causes of action and that the defendant had not demonstrated prejudice from the delay in filing it. The court nevertheless affirmed denial of the plaintiff's motion for summary judgment because the plaintiff failed to establish prima facie entitlement to judgment on either claim.

Holdings

1. The defendant's CPLR 3211(a) motion to dismiss the amended complaint as untimely should have been denied because the plaintiff had been expressly granted leave to amend and the defendant failed to demonstrate prejudice from the delay.
2. The amended complaint adequately stated a viable private nuisance cause of action.
3. The amended complaint adequately stated a viable trespass cause of action because it alleged that the defendant's employees or agents entered the plaintiff's property without permission to install the ventilation pipes.
4. The plaintiff was not entitled to summary judgment on liability for either private nuisance or trespass.

Questions Presented

1. Whether the defendant's CPLR 3211(a) motion to dismiss the amended complaint should have been granted as untimely where the plaintiff had previously been granted leave to amend and the defendant did not show prejudice.
2. Whether the amended complaint adequately stated a private nuisance cause of action based on alleged boiler fumes entering the plaintiff's property.
3. Whether the amended complaint adequately stated a trespass cause of action based on alleged unauthorized entry onto the plaintiff's property to install ventilation pipes.
4. Whether the plaintiff established prima facie entitlement to summary judgment on liability for private nuisance and trespass.

Disposition

reversed_and_remanded