BROWN v. NELSON

The trial court's issuance of a mandatory injunction directing defendant to remove the garage wall was proper. The evidence demonstrates that the garage wall encroached on plaintiffs property by several inches, and defendant failed to establish that she had obtained a prescriptive easement. The encroachment interfered with plaintiffs full use and enjoyment of his property, and defendant offered no evidence that removal of the garage wall would cause undue hardship to her. The evidence establishes that the benefit to plaintiff if the injunction were granted and the irreparable harm to him if the injunction were not granted substantially outweighed the injury to defendant if the injunction were granted ( see Matter of Angiolillo v Town of Greenburgh, 21 AD3d 1101, 1104). We reject defendant's argument that plaintiffs claim regarding the wall is time-barred. Real Property Actions and Proceedings Law § 611 does not apply to this case because there is no abutting wall on plaintiffs property. Moreover, defendant waived the defense by failing to plead it or move for dismissal on that ground (CPLR 3211 [e]).

However, we find that the injunction mandating removal of the skylight was not warranted. Plaintiffs own expert testified unequivocally that after the skylight was moved in response to the Department of Building's notice of violation, it no longer encroached on plaintiffs property.

We have considered defendant's remaining contentions and find them unavailing.