Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the March 29, 2012 mailing of "Constructive Notice":

No Damages for Trespass?

An aggrieved landowner was deprived of the opportunity to prove damages in a trespass case. In Averaimo v Tavares, 2012 NY Slip Op 02073, (2nd Dept., March 20, 2012), the defendants fence encroached upon the plaintiffs land by up to one foot. Plaintiffs, pursuant to RPAPL §871, had sought either 1) an injunction to remove the fence or 2) damages. Defendants moved for summary judgment and Supreme Court, Nassau County, determined that the encroachment was de minimus and dismissed the complaint in its entirety. The Appellate Division upheld the dismissal, while also determining that the defendants had not shown facts sufficient for a declaration of title by adverse possession.


The Second Department did not examine the balance of equities presented by the case. The panel did not specify the proofs advanced by the defendants. It merely held that the defendants demonstrated that the encroachment was de minimus as a matter of law.  While such a conclusion may inherently support the denial of injunctive relief, why should it inherently support the denial of damages as a matter of law? Since the fence location was not in dispute, shouldnt the plaintiffs be given an opportunity to prove a diminution in value at trial?