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Arcamone-Makinano v. Britton Prop., Inc. - 2017 NY Slip Op 08650, 156 A.D.3d 669, 67 N.Y.S.3d 290 (App. Div.)


The measure of damages for a continuing trespass upon real property or permanent injury to property is the loss of market value, or the cost of restoration.


Plaintiffs Amelia Arcamone-Makinano an others alleged that they were the owners of certain real property located in Queens that was improved with a single-family house. They alleged that defendants Britton Property, Inc., and others, were the owners of an adjacent parcel of real property upon which they had constructed a six-story building. Plaintiffs alleged that defendants, during the course of developing their property, installed 17 steel I-beams, which encroached onto plaintiffs' property, and further constructed a "roof cap" and a brick facade trim that projected over their property, thereby encroaching on their air space. Plaintiffs sought certain injunctive relief and compensatory and punitive damages. Ultimately, after a bench trial, judgment was rendered for plaintiffs, who were awarded $750,000 in compensatory damages only. The judgment also granted a permanent injunction prohibiting defendants from maintaining encroachments that projected over plaintiffs' property and directed defendants to remove certain existing encroachments. Plaintiffs and defendants appealed.


Were plaintiffs entitled to damages for trespass?




The appellate court held that the weight of the evidence established that the value plaintiffs' property had been reduced by $325,000. Consequently, the judgment was modified accordingly. In addition, plaintiffs were entitled to an award of punitive damages in the amount of $250,000. The weight of the evidence supported the trial court's determination that plaintiffs were entitled to a permanent injunction prohibiting defendants from maintaining encroachments that projected over plaintiffs' property and directing them to remove the roof cap and the brick facade trim that were projecting into plaintiffs' air space.

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