Trespass Claim Dismissed; Alleged Trespass was Required by Law

On December 10, 2019, Justice Cohen of the New York County Commercial Division issued a decision in 300 W. 48th St. Assoc. v. 306 W. 48th St. Condominium, 2019 NY Slip Op. 33614(U), dismissing a trespass claim because the alleged trespass was required by law, explaining:

A motion to dismiss a Complaint made under CPLR 321 l(a)(7) must demonstrate that, assuming the truth of the allegations asserted in the Complaint, Plaintiff nevertheless fails to state a cause of action. An essential element of a claim for encroachment and trespass is the absence of permission or justification.

Here, Plaintiff admits that the sidewalk shed at issue was erected in connection with required, emergency repairs to the Icon Building. As Defendant asserts, and Plaintiff does not dispute, Defendant was required, while making repairs to the facade of its building, to erect a sidewalk shed for public safety purposes. Based on the record, and in the absence of an opposition from Plaintiff, the Court finds that Plaintiff's claims are without merit and do not fit within a cognizable theory of trespass and encroachment.

(Internal citations omitted).

Commercial litigation can involve much more than claims relating to contracts. Here, the plaintiff's claim was for trespass, but in a commercial context. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding a business dispute.