Riley v. Daly

being the tree line â​​ just by their predecessor in interest (see Kennedy v Nimons, 178 AD3d 1302, 1303 [3d Dept 2019]). Although plaintiffs contend that the boundary line was known and understood by defendants because it was marked by wooden survey stakes through the tree line, the construction of defendants' fence on plaintiffs' side of the tree line is inconsistent with that notion. Under these circumstances, we perceive no error with Supreme Court's determination that plaintiffs failed to satisfy their burden of establishing that the practical location of the boundary line was definitely and equally known, understood and settled for a period of more than 10 years (see Stamp v 301 Franklin St. CafÃ​, Inc., 135 AD3d 1209, 1211-1212 [3d Dept 2016]; Kennedy v Nimons, 121 AD3d 1229, 1232 [3d Dept 2014]; Robert v Shaul, 62 AD3d 1127, 1128-1129 [3d Dept 2009]). As such, this branch of plaintiffs' motion was properly denied.

Plaintiffs further contend that, in rejecting the practical location of the boundary line, Supreme Court erred in granting defendants' cross-motion to set the actual location of the boundary line by survey. In support of their cross-motion, defendants satisfied their moving burden by submitting, among other things, documentary evidence in the form of an affidavit of a professional land surveyor and several survey maps. According to defendants' surveyor, he created a survey map using the deeds, prior survey map from the developer and his visit to examine defendants' property in April 2018. As part of his affidavit on the cross-motion, he also reviewed the survey created by plaintiffs' surveyor in October 2018. In reviewing the three surveys, defendants' surveyor opined that they were "substantially identical in finding, plotting, and surveying the boundary line," and that there was no indication on any of the prior survey maps, in any of the deeds or visibly on the [*3]properties that would indicate any sort of natural boundary line beyond the deeded coordinates, metes and bounds description, and other maps.

In opposition, plaintiffs highlighted several differences between the surveys â​​ notably the coordinates (bearing direction) listed for the boundary line between their survey and defendants' survey. According to plaintiffs, this difference would result in a shift of the boundary line by approximately 10 feet. Plaintiffs further alleged that, by the time defendants' surveyor inspected the property in 2018, defendants had already destroyed the natural boundary line and removed the existing wooden stakes that plaintiffs and the former neighbor averred were present at the time defendants acquired their property in 2004. Given the nature of the disputed area along the boundary line, conflicting narratives and that the competing surveys fail to establish the boundary line as a matter of law by virtue of the different bearings, we conclude that plaintiffs raised a triable issue of fact precluding summary judgment (see Kennedy v Nimons, 121 AD3d at 1231; see also DiLorenzo v Juan Ortoo Holdings, Ltd., 160 AD3d 1184, 1187 [3d Dept 2018]). Accordingly, Supreme Court should have denied the branch of defendants' cross-motion seeking to set the actual location of the boundary line by survey.

Next, plaintiffs contend that Supreme Court erred in dismissing their cause of action for invasion of privacy under the Civil Rights Law. We agree. Under Civil Rights Law § 52-a (1), "[a]ny owner . . . of residential real property shall have a private right of action for damages against any person who installs or affixes a video imaging device on property adjoining such residential real property for the purpose of video taping or taking moving digital images of the recreational activities which occur in the backyard of the residential real property without the written consent thereto of such owner . . . with intent to harass, annoy or alarm another person, or with intent to threaten the person or property of another person." The legislative history behind this enactment was to expand anti-voyeurism laws to protect the rights of individuals in their backyards and specifically refers to an instance where "a family ha[d] been subject to undue stress and concern for their young children's safety when they were subject to constant camera surveillance while . . . in their own backyard by an adjoining neighbor" (Senate Introducer's Mem in Support, Bill Jacket, L 2017, ch 169 at 7).

In support of this cross-motion to dismiss plaintiffs' cause of action for invasion of privacy under Civil Rights Law § 52-a, defendants submitted testimonial evidence that they installed surveillance cameras to view their property and the disputed area along the boundary line allegedly after multiple incidents of trespass, theft and harassment by plaintiffs. Defendants averred that their intent was to monitor and deter instances of misconduct by plaintiffs, and [*4]there was no proof of any intent to harass plaintiffs. In opposition, plaintiffs submitted various photographs from defendants' cameras of their backyard and swimming pool area, which included a photograph of their daughter â​​ a minor. Plaintiffs also contended that they learned from accessing one of the cameras and through disclosure that defendants' cameras took thousands of videos or photographs of their backyard and beyond the disputed area along the boundary line. Based on the foregoing, these contentions fit squarely within the legislative purpose behind Civil Rights Law § 52-a, and therefore we are satisfied that plaintiffs have raised triable issues of fact relating to their invasion of privacy cause of action which should have survived summary judgment (see generally Meadows v Eckert, 218 AD3d 1351, 1353 [4th Dept 2023]). Accordingly, Supreme Court erred in granting this branch of defendants' cross-motion, and we reinstate plaintiffs' third cause of action under the amended complaint for invasion of privacy.

As a final point, the parties disagree over the interpretation of certain language in Supreme Court's decision relating to defendants' cause of action for timber trespass under RPAPL 861. The gravamen of this claim alleges that plaintiffs cut, removed or destroyed timber within the disputed area along the boundary line, which defendants contend they own, and they are entitled to recover damages under the statute (see RPAPL 861 [1]). Plaintiffs' motion alleged that, among other things, there was no proof in the record demonstrating that they cut or removed timber from defendants' property. Even assuming that plaintiffs met their moving burden, defendants' opposing affidavits and the forestry report from defendants' expert were sufficient to raise an issue of fact precluding summary judgment. When further considering the balance of the record before us, and in light of our determination that there are triable issues of fact relating to the ownership of the disputed area where the alleged timber trespass occurred, we are satisfied that neither party was entitled to summary judgment on this claim. We have examined the remaining contentions of each party and have found them to be without merit or academic.

Aarons, J.P., Reynolds Fitzgerald, Powers and Mackey, JJ., concur.