A recent appellate court’s decision has affirmed an order that, among other things, dismissed a trespass claim by homeowners who had alleged that certain municipal employees “entered onto their property during the day and rang the doorbell or spoke to the plaintiff Henry Boring in the front yard . . . .” Henry Boring, et al. v. Town of Babylon, et al., Docket No. 2014-05075 (2d Dep’t Feb. 15, 2017). According to the appellate court’s decision in Boring, the homeowners’ allegations about the municipality’s employees entering upon the homeowners’ land failed to state a cause of action to recover damages for trespass, which has the following essential elements: (i) an intentional entry, (ii) onto the land of another, and (iii) without justification or permission. Id.
COMMENTARY:
In general, a person intentionally entering upon the land of another with either justification or a legal privilege is not a trespasser. Based solely upon the appellate court’s published decision in Boring, it does not appear that there were any exigent circumstances that might have justified the municipal employees entering the homeowners’ land. Id. On the contrary, it appears that the municipal employees were pursuing their official duties in a routine way. Id. Nevertheless, the appellate court in Boring determined that the municipal employees were sufficiently justified, as a matter of law, (i) to enter the homeowners’ property during the day and (ii) to speak with the one of the plaintiffs in the front yard. Tellingly, the appellate court in Boring supported its determination by citing to Alan D. Kucker, et al. v. Kaminsky & Rich, et al., 7 A.D.3d 491, 2004 NY Slip. Op. 03529 (2d Dep’t May 3, 2004), wherein the appellate court previously ruled that a defendant’s “unexceptional daytime entry onto the plaintiffs’ property to ring their doorbell to serve . . . an application to confirm an arbitration award in a case . . . was not unauthorized.” Id. (emphasis added). In Boring, however, the municipal employees apparently were not attempting to serve legal papers when they entered the homeowners’ land, and, therefore, Boring may constitute an incremental expansion of the rule of law represented by the appellate court’s previous decision in Kucker. To determine the existence of other potentially relevant facts and circumstances — including, but not limited to, whether the homeowners had posted a “No Trespassing” sign or had requested that the municipality’s employees leave the homeowners’ property after the initial entry onto the land — it would be necessary to review the entire appellate record and the parties’ respective appellate briefs in the Boring case.
___________________________
Kenneth Allen Brown (kabrown@kabrownlawfirm.com) is an experienced land use, real property, and commercial litigator, with over twenty-five years of experience. He focuses on the following areas of law in the State of New York: Boundary Disputes, Water Boundaries and Riparian Rights, Land Use and Zoning Litigation, Real Property Litigation, Easement Litigation, and Commercial Litigation, including Partnership, Corporate, and Limited Liability Company Disputes. He is available to consult with potential clients regarding disputes between neighbors in the State of New York.
