Was De Minimus Damage Claim Legally Cognizable?
Andrea Umlas sued Christopher and Patricia Britton, the owners of an adjacent property, for injunctive relief and to recover damages based upon the alleged installation of utility wires below ground on a portion of her property without her permission. The Brittons moved for summary judgment dismissing the complaint and to sever their counterclaims alleging that Umlas damaged their property. Supreme denied the motion. And the Brittons appealed.
In the first cause of action, Umlas sought an injunction directing the removal of the underground utility wires from her property. An action pursuant to RPAPL 871 requires a showing that an alleged encroachment was not de minimis. The Brittons established, prima facie, that the encroachment was de minimis, and thus, not sufficient to warrant injunctive relief, as the wires were buried in a portion of Umlas’ property that was only approximately two square feet,. In opposition, Umlas failed to raise a triable issue of fact. Accordingly, Supreme Court should have granted that branch of the Brittons’ motion which was for summary judgment dismissing the first cause of action.
But the Brittons failed to establish their prima facie entitlement to judgment as a matter of law dismissing the second cause of action, which was, in effect, to recover for property damage and trespass, based upon their unsubstantiated and conclusory assertions that Umlas’ property had not been damaged at all or was not damaged in the amount sought in the complaint. Moreover, the Brittons failed to establish, prima facie, that their conduct did not constitute a trespass, for which nominal damages may be awarded even if the property owner failed to make a showing of actual injury. Accordingly, Supreme Court properly denied that branch of the Brittons’ motion which was for summary judgment dismissing the second cause of action.
But Supreme Court should have granted that branch of the Brittons’ motion which was for summary judgment dismissing the third cause of action, which asserted a demand for punitive damages. New York does not recognize an independent cause of action for punitive damages. And the Brittons established, prima facie, that their conduct was not so gross, wanton, or willful, or of such high moral culpability as to warrant an award of punitive damages. In opposition to the that prima facie showing of entitlement to judgment as a matter of law dismissing the third cause of action, Umlas failed to raise a triable issue of fact.