Contiguous neighbors often get into disputes concerning protection or invasion of their property lines and rights. But, as a recent case illustrates, the legal battle can reach great heights when the claims are between the disputatious owners of neighboring outdoor terraces.

Nocola W. Cicchetti sued TRNC Associates Ltd. and 333 East 46th St. Apartment Corp. for trespass, breach of contract, and injunctive and declaratory relief arising from a dispute over the placement of a partition wall between two outdoor apartment terraces. TRNC and the coop moved to dismiss.

On September 26, 2007, Ciccheti purchased the shares allocated to Apartment 15C at 333 East 46th Street in Manhattan. At that time, Apartment 15C was occupied by a rent-stabilized tenant—so Cicchetti became the holder of unsold shares in connection with that apartment. TRNC is the holder of unsold shares referable to the adjacent Apartment 15B. These two apartments shared an outdoor terrace that is physically divided by a partition wall.

The offering plan for the cooperative included depictions of the dimensions and layouts of various apartments. The offering plan provided that

“Some of the apartments may have been altered and thus do not conform to the layouts set forth in the typical floor plans set forth in Part II of the Plan, beginning at page 134. Subscribers are advised to physically inspect any apartment in which they are interested in purchasing prior to submitting a Subscription Agreement and down payment in order to determine actual dimensions, layout, and condition. All apartments are being offered in their current `as is’ condition.”

Cicchetti did not avail himself of the opportunity of physically inspecting Apartment 15C prior to his purchase.

As an incident of purchasing shares of stock in the coop corporation, the corporation issued a proprietary lease to Cicchetti. Paragraph 7 of the lease provided that Cicchetti was granted exclusive use and enjoyment of the leasehold during the lease term.

In 2017, the rent-stabilized tenant died. Thereafter, the Cicchetti physically inspected Apartment 15C for the first time and observed that the wall separating the terraces between Apartments 15C and 15B did not provide for equal-sized terraces but instead left the terrace for Apartment 15B slightly larger than the terrace for Apartment 15C. According to Cicchetti, that type of allocation of terrace space was unique to those two apartments.

Cicchetti thereafter requested the coop and TRNC to move the partition wall to equalize the terrace space allocated to the two adjacent apartments, contending that the allocation was different than other adjacent apartments furnished with outdoor terraces. He also asserted, upon information and belief, that the wall had apparently been moved sometime between the 2007 purchase date and the 2017 inspection date to encroach on the terrace space that should have been allocated to Apartment 15C. TRNC and the coop declined the request. This action ensued.

In his complaint, Cicchetti asserted causes of action alleging trespass, seeking a judgment declaring that the terrace partition was not installed in the correct location, requesting a permanent injunction compelling TRNC and the coop to relocate the partition wall–and seeking to recover damages for breach of contract and to recover attorneys’ fees pursuant to Real Property Law § 234. The coop moved to dismiss the complaint.

The crucial allegation in the complaint was Cicchetti’s assertion that the terrace partition wall was relocated after he purchased the shares allocated to Apartment 15C. The gravamen of the coop’s motion was that, inasmuch as that allegation was made only “on information and belief,” it was insufficient to sustain any of the causes of action asserted in the complaint and rendered the substantive causes of action time-barred.

The Court recognized that it was improper to predicate an award of summary judgment upon an affidavit that alleged material facts and representations upon information and belief, and no statement was made as to the sources of the information or grounds of belief. But this action was only at the pleading stage. As such, under the circumstances, the assertion of certain facts upon information and belief was not fatal, at this juncture, to the claims that were based upon those allegations.

TRNC and the coop also noted that, where an allegation is made upon information and belief and thus renders a complaint completely speculative, dismissal may be warranted even at the pleading stage. But where, as here, the truth of an allegation that was made upon information and belief may be readily established or disproven with minimal discovery, dismissal at the pleading stage was not required. The allegation that the terrace partition wall was moved after Cicchetti purchased the shares for Apartment 15C would be provable or disprovable with testimony, building plans, building permits, and construction contracts.

The purpose of discovery is to determine if material relevant to a claim or defense exists. Discovery had yet to commence, so Cicchetti was entitled to seek information to support his contention that the partition wall was relocated after he purchased the shares, information that was solely within the knowledge of the coop and TRNC. Thus, the dismissal was not warranted at the early stage of litigation.

A dismissal may have been warranted if the documentary evidence submitted conclusively established a defense to the asserted claims as a matter of law.

The coop relied upon its offering plan, the June 12, 1987, proprietary lease for Apartment 15C that had been issued to Opal Company, L.P., the September 26, 2007 assignment of that proprietary lease to Ciccerri, the proprietary lease for Apartment 15B that was also issued to Opal, and the July 29, 1987 assignment of that proprietary lease to TRNC. None of those documents conclusively established the precise location of the terrace partition wall separating Apartments 15B and 15C between 1987 and 2007, and none of them established that the wall was not relocated after September 26, 2007. The coop’s submissions did not warrant dismissal.

To secure dismissal of the complaint as time-barred, the coop had the initial burden of establishing that the action was commenced after the expiration of the relevant limitation period. If the coop satisfied its initial burden, then Cicchetti was obligated to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether he actually commenced the action within the applicable limitations period.

The limitations period applicable to causes of action alleging trespass to the property is three years. To determine the statute of limitations for a declaratory judgment action, the court must examine the substance of that action to identify the relationship out of which the claim arises and the relief sought. If the rights of the parties may be resolved in a different form of proceeding for which a specific limitations period applies, then the court must apply that period. Inasmuch as the three-year limitations period for trespass actions applies to this action, the declaratory judgment action was also subject to a three-year limitations period. Nonetheless, if an action is deemed one for trespass, then the cause of action will accrue at the time the trespass occurs. Trespasses of a continuing character may be considered a continuing trespass, which would give rise to successive causes of action each time there is an interference with a person’s property so that relief would not be barred by the statute of limitations for interferences occurring within three years of the commencement of the action.

The coop submitted no evidence demonstrating when the partition wall was initially erected and no evidence from a person with knowledge showing either that it was never relocated or was relocated prior to Cicchetti’s purchase of Apartment 15C. Thus, the coop failed to establish, prima facie, that the three-year limitations period applicable to trespass claims expired prior to the commencement of the action on May 2, 2019. In any event, a factual dispute existed as to whether the trespass was continuing for limitations purposes.

The limitations period applicable to actions to recover for breach of contract is six years from the date of breach. Cicchetti alleged that the coop breached the proprietary lease by leasing him a certain portion of the terrace and thereafter relocating the partition wall, or permitting it to be relocated, thus diminishing the contractually defined area of the terrace. He asserted that the coop deprived him of the use and enjoyment of the entire terrace, in violation of the terms of the proprietary lease. As with the trespass cause of action, the coop failed to adduce any evidence showing that the wall either was never relocated or, if it was relocated, that the task was completed more than six years prior to the date that the commenced this action.

Interference with a person’s property constitutes a trespass. The elements of a trespass cause of action are an intentional entry onto the land of another without permission. The definition applies not only to land or a structure, but to a unit in a residential cooperative apartment building as well. The complaint stated the necessary elements of a cause of action sounding in trespass to property. Moreover, the coop did not establish that a fact alleged by Cicchetti in connection with the trespass cause of action was not actually a fact. And there was a significant dispute regarding whether and when the partition wall was relocated. Hence, there was no basis upon which to dismiss the trespass cause of action for failure to state a cause of action.

The Court found that the allegations of the complaint were sufficient to make out a cause of action for declaratory relief, and there were clearly questions of fact presented by the controversy. Dismissal of the declaratory judgment cause of action was not warranted at the pleading stage.

The complaint unambiguously alleged that the coop was presently violating Cicchetti’s property rights by maintaining the terrace partition wall several feet into the terrace area allocated to Apartment 15C, and that only a mandatory permanent injunction compelling the relocation of the terrace partition wall would afford him an adequate remedy. To the extent that Cicchetti alleged that the wall encroached on his property, and deprived him of the full use of that property, he alleged irreparable harm absent the injunction. To the extent that Cicchettti asserted that the coop wrongfully moved the wall so as to decrease the terrace space that should have been allocated to Apartment 15C, the balance of equities tipped in his favor, inasmuch as the cost of the work to move the wall was alleged to be inconsequential. So the complaint stated a cause of action for permanent injunctive relief compelling the removal and relocation of the terrace partition wall. Whether Cicchetti would ultimately succeed on that cause of action was not before the Court.

The complaint stated a cause of action sounding in breach of contract. And the evidence submitted by the coop did not establish that a fact alleged by Cucchetti was not a fact at all, or that there was no significant dispute concerning it. Specifically, the coop relied on the terms of the offering plan. pursuant to which a purchaser of shares takes a unit “as is.” None of the evidence submitted by the coop demonstrated what the layout, dimensions, or condition of the terrace was as of the September 26, 2007 purchase date, and none indicated the location of the terrace partition wall. So that contractual clause did not defeat the breach of contract cause of action because Cicchetti alleged that, regardless of the condition of the terrace on the purchase date, the coop altered its layout and dimensions.

Cicchetti also stated a cause of action to recover attorney’s fees. Real Property Law § 234 implies into every lease of residential real property

“a covenant by the landlord to pay the tenant the reasonable attorneys’ fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease.”

Cicchetti alleged and showed that the proprietary lease provided for an award of attorney’s fees to the coop, as the landlord, if the coop prevailed in a proceeding against him. Since the coop was contractually authorized to recover such fees in a dispute, Cicchetti had a right to recover such fees if he prevailed. And New York recognized a cause of action to recover attorneys’ fees pursuant to a contractual provision. But whether Cicchetti had such a cause of action awaited the determination of which party, if any, was the prevailing party in this action.