Papers Numbered NYSCEF Doc. Nos. 78-96MEMORANDUM DECISION The plaintiff, named in the caption as Saint Mary Romanian Orthodox Church (hereinafter “the Church”),1 located at 42-12 74th St., Elmhurst, Queens County, New York, moved by emergency order to show cause (hereinafter “OSC”) for a preliminary injunction preventing defendants from performing any further work or structure (1) on the foundation wall that has been constructed along the western line of the Church’s property, (2) on or above the foundation wall, or (3) any further work that encroaches onto the Church’s property. See, CPLR 6301. The undersigned, presiding as the Emergency Justice for Supreme Court, Queens County, heard the application and the arguments by adversary counsel, all placed on the record, of the branch of the OSC that sought a temporary restraining order (“TRO”). All defendants, except for Vision Contracting — which has not appeared in the action thus far, were present to oppose the application. At the conclusion of the oral argument, the Court issued the TRO relief requested by the plaintiff for reasons stated on the record and in the present opinion.The plaintiff is a Romanian Orthodox Christian Church located at 42-14 74th Street, in Elmhurst, Queens County, New York. The defendants are currently constructing a substantial residential apartment on a parcel of property adjacent to the plaintiff’s Church. In order for construction to proceed on this project, a retaining wall was built very close to the plaintiff’s property line. A survey undertaken by a professional surveyor, Ms. Oriana Nicoletti-Greco of Joseph Nicoletti Associates, Professional land Surveyors, P.C., retained by the plaintiff, convincingly revealed that the steel soldier piles constructed by the defendants encroach on the plaintiff’s property at the north end of its western property line by 2.5 inches and at the south end of its western property line by 3.25 inches. The survey further revealed that the wood lagging constructed by the defendants encroach on the plaintiff’s property at the north end of its western property line by 3.25 inches and at the south end of its western property line by 3.75 inches.As an initial matter, to the extent that a portion of this retaining wall encroaches underground is irrelevant. A subterranean encroachment is as much actionable as that occurring above ground. See, 509 Sixth Ave. Corp. v. New York City Transit Auth., 15 N.Y.2d 48, 50-51 (1964) (“The encroachment was located below ground at a depth of about 30 feet.…The sole importance of the subterranean location of the trespass is that the plaintiff was ignorant of the encroachment when it was made.”).The Court recognizes that encroachments of from 1 ½ to 3 ¾ inches onto another individual’s property have generally been labeled as de minimis and will not justify a request to compel the removal of the alleged encroachment. See, In the Matter of Zhuang Li CAI, v. M.D. Jamil Uddin, 58 A.D.3d 746 (2nd Dept. 2009); see also, Hoffmann Investors Corp., v. Yuval, 33 A.D.3d 511, 512 (1st Dept. 2006); see also, Generalow v. Steinberger, 131 A.D.2d 634, 635 (2nd Dept 1987). The Appellate Division, First Department has, nevertheless, held that a court may order the removal of an encroachment of a mere three inches. See, Robert v. 747 Kohs, 35 A.D.3d 178 (1st Dept. 2006).Even if an encroachment is not substantial enough to compel removal, the intrusion may, however, permit an award of damages if the plaintiff can establish the diminution in the value of its property as a result of the encroachment. See, Generalow v. Steinberger, 131 A.D.2d at 635, supra. In other words, “[t]he appropriate measure of damages is the difference between the value of the plaintiff’s property with and without the encroachment.” Id. In the end, whether or not an encroachment is actionable requires a weighing of the relative circumstances. See, Hoffmann Investors Corp., v. Yuval, 33 A.D.3d at 512, supra. In this case, the Court finds that the circumstances warrant the requested relief.Here, notwithstanding that the maximum amount of the encroachment is 3.75 inches, that factor, in and of itself, does not end the inquiry. First, the plaintiff’s building is not recessed from its property line. Instead, the Church lies several feet from the plaintiff’s property line. Had the plaintiff’s building been recessed a substantial distance from its property line, such factor might support a finding that the subject intrusion is de minimis. Given the proximity of the Church building to the property line, however, the defendants should have paid careful attention prior to constructing the retaining wall. The defendants’ retaining wall was, instead, constructed with complete indifference to the property rights of the plaintiff.Under these circumstances, the defendants had no right to build a retaining wall that encroached onto the plaintiff’s property, even if the intrusion amounted to only 3.75 inches. See, Robert v. 747 Kohs, 35 A.D.3d at 179, supra. This fact is especially true given that the second floor of the plaintiff’s Church contains a bay window, which, according to the instant survey, extends to and sits above, but not over, the Church’s property line. In addition, during oral argument, plaintiff’s counsel described this as a “cupola,”2 which is an integral component of the worship rituals of the Church. In sum, given that the cupola juts out from the Church building, the defendants have intruded directly on the Church building and not simply its land. Viewed from that perspective, the encroachment can hardly be considered de minimis.The Court further notes that, in determining whether or not the encroachment required judicial intervention or is de minimis, consideration must also be given to the special status of a religious institution under the First Amendment. See, Jewish Reconstruction Synagogue of North Shore v. Incorporated Village of Roslyn Harbor, 38 NY2d 283 (1975). The plaintiff, in this case, is a church and has a substantial congregation. In Jewish Reconstruction Synagogue of North Shore, the Court of Appeals held that the special status accorded to a religious institution under the First Amendment of the U.S. Constitution, is the dominant factor in determining the validity of zoning restrictions. The case before this Court is, of course, not a zoning action; instead, it involves the request for a temporary restraining order in a trespass action. The Court, nevertheless, finds that some consideration should be accorded the plaintiff for its religious status for purposes of this application.As noted above, attached to the plaintiff’s Church is a cupola or a bay window, that sits above, but not over, the Church’s property line. As well-explained by both Michael H. Reich and Alexander F. Ferrini, III, Esqs., on behalf of the plaintiff, at the oral argument, this cupola is an essential component of worship for this religion. When viewed in this light, the encroachment in this case is not so easily dismissed as de minimis. As a religious institution, the plaintiff should not have been treated with such indifference by the defendants. The defendants’ ongoing construction project has obviously consumed almost the entirety of the defendants’s property. In an attempt to build aggressively on almost every square inch — indeed, fraction of an inch — of this property, the defendants carelessly intruded, not merely on the plaintiff’s property, but on an object of religious worship. The defendants should have shown some respect to the plaintiff and its worshipers and pursued avenues of cooperation, rather than employ aggressive expansion.It is mind-boggling that defendants, in opposition to the present OSC, could not present the Court with a survey to substantiate their arguments. Surely, before undertaking any construction project on real property, a survey is required in order to determine the common boundary lines between adjacent properties. See, Madison 96th Associates, LLC v. 17 East Owners Corp., 2013 WL 2356287, at *1 (Sup. Ct. New York County 2013) (Kornreich, J.). Here, only the plaintiff had the proof of a survey. See affidavit of Ms. Oriana Nicoletti-Greco, a professional land surveyor, and the survey attached thereto; and the affidavit of Ms. Adriana Calin, a registered architect, who pointing to the aforementioned land surveyor’s affidavit and the survey, attesting: “[I]f Defendants continue to build upwards from the current placement of their foundation wall, Defendant’s new structure would eventually intersect with the underside of the Church’s bay window.” Calin Affidavit, para. 5, p.2. The defendants, on the crucial issue, had nothing. Their failure to present a survey speaks volumes.The plaintiff understandably seeks a preliminary injunction accompanied by the request for immediate TRO relief. From the plaintiff’s point of view, the fear of encroachment on its property line was and remains well-founded. For this reason, it is reasonable for the plaintiff to be concerned that the defendants’ construction project may encroach even further on its property, particularly the cupola.The ultimate relief of a preliminary injunction must await determination by the learned Justice assigned to this action, on the return date of December 11, 2018, as reflected in the OSC completed by the undersigned. Nevertheless, the legal standard for determining a preliminary injunction is helpful, instructive, and useful in discussing whether this Court should grant plaintiff’s present application for a TRO. Specifically, to obtain a preliminary injunction, the plaintiff must establish (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) a balancing of the equities in the movant’s favor. See, Cong. Machon Chana v. Machon Chana Women’s Inst., Inc., 162 A.D.3d 635 (2nd Dept. 2018); CPLR 6312 [c]; see also, Rowland v. Dushin, 82 AD3d 738 (2nd Dept 2011); S.J.J.K. Tennis, Inc. v. Confer Bethpage, LLC, 81 AD3d 629 (2nd Dept. 2011); Volunteer Fire Assn. of Tappan, Inc. v. County of Rockland, 60 AD3d 666, 667 (2nd Dept. (2009). “The purpose of a preliminary injunction is to preserve the status quo until a decision is reached on the merits.” Icy Splash Food & Beverage, Inc. v. Henckel, 14 AD3d 595, 596 (2nd Dept. 2005). The decision granting or denying a preliminary injunction rests in the sound discretion of the Supreme Court. See, Trump on the Ocean, LLC v. Ash, 81 AD3d 713 (2nd Dept. 2011). The mere existence of an issue of fact will not itself be grounds for the denial of the motion.The Court further notes that “a preliminary injunction…depends upon probabilities, any or all of which may be disproven when the action is tried on the merits.” J. A. Preston Corp. v. Fabrication Enterprises, Inc., 68 NY2d 397, 406 (1986). At this stage of the litigation, after hearing the arguments of counsel, the Court finds that there is a likelihood that the plaintiff will succeed in its trespass action against the defendants.As noted, under the circumstances of this case, the Court does not find the intrusion to be de minimis. The Court further finds that irreparable injury may occur to the plaintiff absent the granting of a TRO. In this case, in light of the plaintiff’s survey revealing that the defendants have already intruded onto its property, the plaintiff has a reasonable basis to believe in the likelihood of a further intrusion.At this point, the plaintiff understandably and justifiably needs judicial assurance that the defendants do not intend to intrude any further on the plaintiff’s building and the right of its parishioners to worship. Presently, no such assurance has been provided by the defendants. In the case at bar, a court order is needed to prevent any further intrusion.Finally, after weighing the equities in this case, the Court finds that they balance in favor of the plaintiff. See, 154 E. 62 LLC v. 156 E 62nd Street LLC, 2017 WL 3172805, at *9, 2017 NY Slip Op 31576(U) (Sup. Ct. New York County 2017) (Lebovits, J.) (“Further, plaintiff has established the likelihood of irreparable injury if the injunction is withheld, by showing that the structural and waterproofing integrity of the adjacent premises have been compromised, that defendant’s workers and construction debris continue to enter on its property without its permission, and that defendant installed exhaust outlets dangerously close to plaintiff’s property [citation omitted]. These injuries cannot be made whole solely by money damages, as the possibility of future harm is not ‘capable of calculation.’”), aff’d, 159 A.D.3d 498 (1st Dept. 2018).Here, the instant TRO temporarily barring the defendants, until the return date of the OSC, from performing any further work or structure (1) on the foundation wall that has been constructed along the western line of the Church’s property, (2) on or above the foundation wall, or (3) that encroaches onto the Church’s property, is not meant to stop the instant building from being erected. The accompanying OSC containing the TRO and this opinion apply solely to the defendants’ retaining wall that has already been erected and to any future construction that encroaches onto the Church’s property.The Court acknowledges that well-settled law requires “that the Supreme Court fix[] an amount for the requisite undertaking pursuant to CPLR 6312.” Cong. Machon Chana v. Machon Chana Women’s Inst., Inc., 162 A.D.3d at 638, supra. Under the totality of circumstances noted above, including the failure of the defendants to present their own survey on the penultimate issue of encroachment, the Court declines, sua sponte, to require the plaintiff, at this TRO juncture, to post an undertaking.Since defense counsel refused to accept service of copies of plaintiff’s supporting papers for the OSC at their recent appearance, the plaintiff is directed to serve the OSC as specified therein, to accomplish and effectuate proper service of the papers.Accordingly, the plaintiff’s application is granted in accordance with this opinion.Dated: Jamaica, New YorkOctober 25, 2018
