An easement, or right-of-way, grants someone the right to cross or use another’s property for a specific purpose. But if the holder of the right-of-way exceeds the scope of the easement, he or she may be liable for damages for trespass. That was the case in Julia Properties, LLC v. Levy.

In July 2009, plaintiff Julia Properties, LLC, owned by Thomas Decea, entered into a lease with William Morgan, the landlord, to rent property owned by Morgan. Defendant Norman Levy possessed a right-of-way over a portion of the property to access a dock. Plaintiff sued Levy to recover damages for trespass, claiming that in July 2010, Levy engaged in criminal conduct on the property. Specifically, Plaintiff alleged that Levy intentionally used the wheels of his truck to launch stones at the home occupied by Decea’s family.

Levy moved for summary judgment dismissing the case. He argued that he possessed a right-of-way over the relevant portion of the property and that no damages were sustained. Levy also argued that Plaintiff had no right of possession at the time of the alleged trespass and, in turn, lacked standing. Levy claimed that Plaintiff could not have leased the property before October 2010, when a certificate of occupancy for the property was issued.

On the other hand, under the lease, the “commencement date” was the date that either: (i) Landlord obtained a certificate of occupancy; or (ii) the property was deemed habitable. Decea testified that the property was ready for occupancy in 2009 and habitable by July 2010. Thus, Plaintiff argued, it had the right to possession at the time of the alleged trespass.

The Second Department held that Westchester Supreme Court Justice Linda Jamieson properly denied Levy’s motion for summary judgment dismissing Plaintiff’s claim. The elements of a trespass claim are: “the intentional entry onto the land of another without justification or permission.” Korsinsky v. Rose, 120 A.D.3d 1307, 1309-1310, 993 N.Y.S.2d 92 (2d Dep’t 2014). Based on Decea’s testimony, Levy could not establish that Plaintiff did not have a right to possession at the time of the alleged trespass.

Levy also failed to establish entitlement to dismissal of Plaintiff’s claim based on his right-of-way to enter the property. Although “[a]n action for trespass may not be maintained where the alleged trespasser has an easement over the land in question,” Mangusi v. Town of Mount Pleasant, 19 A.D.3d 656, 657, 799 N.Y.S.2d 67 (2d Dep’t 2005), this “is true only when the scope of the easement has not been exceeded.” Gates v. AT&T Corp., 100 A.D.3d 1216, 1220, 956 N.Y.S.2d 589 (3d Dep’t 2012). The Second Department affirmed Justice Jamieson’s ruling that Levy failed to eliminate all triable issues of fact as to whether his alleged criminal conduct exceeded the scope of his easement of a portion of the property to access the dock.

The Second Department also affirmed Justice Jamieson’s ruling that Levy failed to establish that Plaintiff sustained no damages. “The essence of trespass to real property is injury to the right of possession.” Id. (quotation omitted). Thus, that Plaintiff did not own the property or spend money to repair the damage to it was irrelevant. Plaintiff may recover “consequential damages such as … damages caused by discomfort and inconvenience.” Volunteer Fire Assn. of Tappan, Inc. v. County of Rockland, 101 A.D.3d 853, 856, 956 N.Y.S.2d 102 (2d Dep’t 2012).

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Photo of Brian Cohen Brian Cohen

Brian Cohen is a founding partner of the firm. An accomplished litigator practicing in federal and state courts throughout the country, he has extensive experience in all phases of litigation. Brian has successfully represented a diverse clientele in a broad range of complex business and real estate litigation and class action litigation. Brian is a 1997 graduate of the St. John’s University School of Law, where he was a member of the St. John’s Law Review.

Brian is admitted to practice law in New York, Connecticut, the United States Supreme Court, United States Courts of Appeals for the Second Circuit, and the United States District Courts for the Southern and Eastern Districts of New York and the District of Connecticut. He is a member of the Westchester County Bar Association and its Corporate and Commercial Law Committee.