Sohigian v. Kin-Post Realty Corp. , 54 A.D.2d 541 ( 1976 )

Judgment, Supreme Court, Bronx County, entered March 11, 1975, after a nonjury trial, awarding plaintiffs the sum of $3,000 damages to trees and shrubs and for trespassing and permitting the defendant to enter plaintiffs’ land, and directing the defendant to "fill in the chasm caused by it, with clean fill and then top it off with three feet of top soil,” unanimously affirmed, without costs or disbursements. The defendant Kin-Post Realty Corp. owned land adjacent to that of the plaintiffs’ Sohigian and erected an apartment house upon it. A retaining wall for the apartment house was built right up to the Sohigian property line. A trench was dug on the Sohigian property in order to build the wall. The Sohigians attempted to show that Kin-Post placed concrete footings on their property, resulting in a trespass. Kin-Post urged that the concrete alluded to by the Sohigians was mere spillage which occurred during construction. We agree with the findings of Trial Term that no competent evidence was adduced to sustain the contention that the concrete was actually evidence of footings, or that it ran the full length of the wall. The concrete "spillage” was eight feet below the ground, and the building specifications revealed no footings to be constructed on plaintiffs’ property. The concrete spillage lay on top of granite rock. The occurrence of a trespass was conceded at the trial, and the sole issue is whether or not the award made served as adequate compensation. The Sohigians failed to show that the spillage, eight feet below the surface, adversely affected the use of their property to an extent greater than the award of the trial court, and we have accordingly affirmed. Concur &emdash;Markewich, J. P., Kupferman, Lupiano, Capozzoli and Lane, JJ.