FILED: KINGS COUNTY CLERK 11/02/ /16/ :25 04:16 PM INDEX NO /2015 NYSCEF DOC. NO RECEIVED NYSCEF: 11/02/2016

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1 FILED: KINGS COUNTY CLERK 11/02/ /16/ :25 04:16 PM INDEX NO /2015 NYSCEF DOC. NO RECEIVED NYSCEF: 11/02/ /16/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X 441 BAINBRIDGE, LLC Index No.: /2015 -against- Plaintiff, AFFIRMATION IN OPPOSITION TO MOTION FOR DEFAULT JUDGMENT BAINBRIDGE UPREAL, LLC, and IA INVESTORS, LLC, Defendant(s) X JASON S. MATUSKIEWICZ, Esq. an attorney admitted to practice law in the State of New York, affirms as follows under penalties of perjury: 1. I am of counsel for the law firm of GORDON & GORDON, PC, the attorneys for 441 BAINBRIDGE, LLC ( 441 ), and I am fully familiar with all of the facts relating to this case. I submit this affirmation in opposition to the defendant, BAINBRIDGE UPREAL, LLC s ( UPREAL ) motion for default judgment. 2. This is a case in which the defendant seeks default judgment on two purported causes of action that amount to an admission that it trespassed on the plaintiff s land, their neighbor, in the course of constructing their building, illegally underpinned 441 BAINBRIDGE s ( 441 ) building, at a minimum causing structural damage, and now seeks judgment on something that is not even close to a cognizable cause of action in the first place. It is quite a strange thing. 3. The essence of the matter is that in order to be entitled to a default judgment, a party must actual have a claim that the law recognizes as such that it can also prove. On any application for judgment by default, the applicant shall file proof of the 1 of 6

2 facts constituting the claim. CPLR A plaintiff seeking a default judgment under CPLR 3215 (subd [e]) must present prima facie proof of a cause of action. (Silberstein v Presbyt. Hosp. in NY, 96 AD2d 1096, 1096 [2nd Dept 1983].) On a default judgment motion, the court retains the discretionary obligation to determine whether the applicant has met the burden of stating a prima facie cause of action. (Dyno v Rose, 260 AD2d 694, 698 [3rd Dept 1999].) 4. UPREAL has no cause of action. They claim that 441 was unjustly enriched, because UPREAL trespassed on their building and illegally underpinned it. I frankly do not even know what you would call UPREAL s first purported counterclaim. Def. Ex. D: Answer, Counterclaims and Cross-Claims. The only facts that UPREAL can prove are that it trespassed on 441 s building multiple times and underpinned it without their permission in the process of constructing their own building. It should be needless to say, but you wouldn t let me trespass on your building, so I did it anyway without court approval or permission of any kind, and that was inconvenient for me, is not a cause of action, which fails to even take into account the fact that UPREAL damaged 441 s building in the process. 5. Despite their clear culpability, UPREAL insists it is somehow 441 s fault that UPREAL has negligently damaged 441 s building, to the point that it is structurally unsound. For some reason, UPREAL keeps insisting that once it asked for permission to underpin 441 s building, and that permission was denied, the obligation to ensure that UPREAL did not damage their building fell to 441. Def. Ex. D: Summons and Complaint; Def. Affirmation. This is simply not the case. NYC Administrative Code provides no refuge for UPREAL. It never petitioned any Court for relief, and 2 of 6

3 even then it would not be entitled to that relief. At the end of the day, you must have permission from a property owner before you can permanently trespass on their land. 6. Their oft restated assertion that they asked and did not like the answer is not good enough. Neither the Department of Buildings, nor RPAPL 881, nor New York City Administrative Code permits Plaintiff to building an underpinning or to do any excavation on Plaintiff s property without its permission. The fact that the Department of Buildings issued a permit for the underpinning is immaterial to Petitioners' claim of trespass. The Department of Buildings has no authority to grant Respondents permission to install underpinnings on Petitioners' property or even to enter on Petitioners' property absent petitioners' consent. (Matter of McLennon v Serv. 31 Corp., 9 Misc 3d 1109[A], 1109A, 2005 NY Slip Op 51459[U], *4 [Sup Ct, Kings County 2005].) 7. While Defendants may claim refuge in RPALP 881 or New York Administrative Code , these provision provide no such relief. This, however, would make little difference, as UPREAL never sought approval for its proposed excavation and permission to enter 441 s land after UPREAL rejected 441 s reasonable offer. These statutes and codes provide as follows. When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry. NY CLS RPAPL of 6

4 The responsibility of affording any license to enter adjoining property shall rest upon the owner of the adjoining property involved; and in case any tenant of such owner fails or refuses to permit the owner to afford such license, such failure or refusal shall be a cause for the owner to dispossess such tenant through appropriate legal proceedings for recovering possession of real property. Nothing in this chapter shall be construed to prohibit the owner of the property undertaking construction or demolition work from petitioning for a special proceeding pursuant to Section 881 of the Real Property Actions and Proceedings Law. New York City Administrative Code It is clear that even if it were permissible, and it is not, that the license granted under would require an RPAPL 881 proceeding in the event that the property owner denies permission, which UPREAL never did. Nevertheless, any such attempt would have been rebuffed. In a case affirmed by the Second Department, the Court stated that an underpinning constituted a permanent encroachment on the respondents' property that cannot be permitted pursuant to RPAPL 881. (Matter of Broadway Enters., Inc. v Lum, 16 AD3d 413, 413 [2nd Dept 2005].) Citing this case, the 1 st Department expounded on its meaning. The safeguard requirements of former Administrative Code (b) (1) do not abrogate the well-established principle of law that a property owner's placement of a permanent structure upon an adjacent owner's property, without the adjacent owner's consent or permission, is a trespass. (Madison 96th Assoc., LLC v 17 E. 96th Owners Corp., 121 AD3d 605, 608 [1st Dept 2014].) 9. The existence of Administrative Code does not make Defendant s action any less a trespass. While compliance with section (b) (1) and the absence of structural damage to the building (i.e. leaks, cracking, etc.) may bear upon the issue of damages, they do not constitute a complete defense to a claim of trespass where, as here, the underpinning is a permanent encroachment. Id. Stated 4 of 6

5 simply, Defendants have no right to the use of the underground portions of Plaintiffs' property. (Katimbang v 719 Ocean View Ave. LLC, 13 Misc 3d 1215[A], 1215A, 2006 NY Slip Op 51830[U], *5 [Sup Ct, Kings County 2006].) 10. BAINBRIDGE goes so far as to admit its liability. First they admit that they did not have permission to underpin the Plaintiff s building, then they admit to doing so anyway. That is the essence of their purported claim. It is rather breathtaking, to be honest. Certainly, default judgment cannot be issued on such a claim. WHEREFORE, 441 Bainbridge, LLC respectfully prays that the Court deny the requested relief in its entirety. Dated: November 2, 2016 Forest Hills, N.Y. Sincerely yours, GORDON & GORDON, P.C. /s/ Jason S. Matuskiewicz JASON S. MATUSKIEWICZ, Esq. PETER S. GORDON, Esq. Attorneys for Plaintiff 26 Court Street, Suite 1400 Brooklyn, New York P: F: of 6

6 Index No.: /2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS 441 BAINBRIDGE, LLC -against- Plaintiff, BAINBRIDGE UPREAL, LLC, and IA INVESTORS, LLC, Defendant(s) AFFIRMATION IN OPPOSITION GORDON & GORDON, PC Queens Blvd. Forest Hills, NY (718) Pursuant to 22 To: NYCRR , the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous. Dated: Forest Hills, New York November 2, 2016 /s/ Jason S. Matuskiewicz Jason S. Matuskiewicz, Esq. Dated: Service of copy of the within is hereby admitted Attorneys for 6 of 6