In 70 Pinehurst Ave. LLC v RPN Mgt. Co., Inc., the appellate division was called to decide arguments between two adjacent property owners concerning the precise location of a retaining wall, and whether a nuisance claim is really just a duplicative claim for negligence.

A retaining wall located on the plaintiff’s property collapsed, and the property sued, claiming that the collapsed wall also stood partially within the neighboring property’s boundaries and that the neighbor’s ongoing refusal to participate in repairing and maintaining the retaining wall caused its collapse.  The suit contained a cause of action for both negligence and nuisance.

The defendant property owner disputed that the wall was even located on his property.  Plaintiff’s claim was supported by two questionable land surveys, and defendant’s position was based upon its own land survey which concluded that no portion of the wall was located on the defendant’s property.

All parties moved for summary judgment, and the Supreme Court granted summary judgment in favor of the plaintiff. The Appellate Division modified the Supreme Court’s decision, finding the plaintiff’s two surveys were insufficient to grant the plaintiff summary judgment without an affidavit from the surveyor to constitute competent evidence of the location of property lines and retaining wall.  Because the defendant’s survey was accompanied by an affidavit, the Court found this adequate proof that the retaining wall was not located within defendant’s boundary.  However, in an interesting twist, the decision held that plaintiff’s two surveys (although without any affidavit) were admissible evidence to defeat the defendant’s prima facie entitlement to summary judgment.

Lastly, the Appellate Division decided that the plaintiff’s cause of action for nuisance — based on claims that defendant’s ongoing refusal to participate in the repairs and maintenance of the retaining wall substantially interferes with plaintiff’s ability to use and enjoy its property — arose solely from plaintiff’s claim of negligence.  Where nuisance and negligence elements are “so intertwined as to be practically inseparable,” a plaintiff may recover only once for the harm suffered.  Therefore the Court dismissed plaintiff’s nuisance cause of action.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.