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Land developer’s construction of building encroached upon neighbors’ land. Britton Property, Inc., a developer, constructed a new six-story residential building located on Britton Avenue, in Elmhurst Queens. Britton installed 17 steel I-beams, a roof cap, and a brick façade that physically encroached on surrounding properties and the properties’ airspace. Britton’s architectural plans provided for the beams to be installed temporarily on the surrounding properties, but Britton failed to remove them.

The adjacent homeowners sued Britton for trespassing on their properties. Supreme Court Justice Valerie Nelson ruling in favor of the homeowners, entered a permanent injunction forcing Britton to remove the beams, and awarded $750,000 in compensatory damages. Judge Nelson declined to award the homeowners punitive damages. Both Britton and the homeowners appealed.

The Appellate Division, Second Department, agreed with the homeowners that Britton had trespassed, but reduced the damages award to $325,000. The Appellate Division ruled that the homeowners’ injuries did not support the $750,000 award because removal of the beams would remedy the harm. The Appellate Division approved, however, of an award of punitive damages, reasoning that Britton’s intentional conduct warranted punitive damages. The court awarded the homeowners an additional $250,000 in punitive damages.

Arcamone-Makinano v. Britton Property, Inc., 67 N.Y.S.3d 290 (2nd Dep’t 2017).

By: Erika Pedersen (Erika is a New York Law School Student, Class of 2019.)