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Center Not Responsible For Contractor's Debris
by Ron Davis

Were damages suffered by the business neighbor of a New York shopping center caused by workers hired for the center’s recent modification project? The business neighbor obviously thought so and subsequently sued the center’s owner, seeking monetary reprisal.

The shopping center, located in the south-central New York town of Oneonta, is owned by AF III Properties, LLC. And the damage claim was a byproduct of a project to upgrade the property by improving the center’s driveway and roof.

The neighbor operates an automotive repair shop and benefits from a right-of-way on one of the boundaries of the shopping center property. Customers of that business use that right-of-way to access the shop’s garage repair bays.

Once the shopping center began the improvement project, the neighbor protested that some of the work resulted in a diversion of water onto his repair shop’s property. Moreover, the neighbor contended, the project’s workers regularly trespassed on the shop’s right-of-way.

In addition to seeking payment for alleged damages caused by workers on the project, the neighbor asked the courts to force the center’s owner to alter the drainage system on the shopping center roof so that rainwater would no longer drain on his property. The neighbor also sought a “perpetual prescriptive easement” along the right-of-way. The purpose of such an easement would allow an entrance and an exit for customers of the auto repair shop.

A New York court agreed that the center’s neighbor had acquired a commercial easement for the use of shopping center property. But that court also rejected the other charges as legally unfounded.

The neighbor appealed that ruling, arguing that the court should have recognized that the improvements made to the center property increased the flow of water onto the adjacent property. Such water flow, the neighbor added, interfered with his use of the right-of-way.

The neighbor also charged that workers on the center project were guilty of trespassing, of illegal excavation of his right-of-way, and of depositing debris.

The center’s owner countered that the improvements made to center property were “modest” and simply involved minor repairs to the building’s roof and a portion of its driveway. The center’s owner also contended that water from rainfall runs on the neighbor’s property because of the natural contour and natural grade of the land in that area.

A New York appellate court sided with the center’s owner, ruling that the neighbor failed to submit any evidence that center personnel directed the improvement project workers to enter neighboring property during the undertaking. “Moreover,” the judges added, “in addition to denying knowledge that debris had been left on the neighbor’s property, the center’s owner produced a contract it had with the contractor that required all debris to be removed by the contractor from the site.”

(Burgher v. AF III Properties, LLC, 2011 WL 167524 [N.Y.A.D. 3 Dept.])

Decision: January 2011
Published: February 2011



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