        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

43
CA 16-01297
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


DIANE CHOROMANSKIS AND JOHN CHOROMANSKIS,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

CHESTNUT HOMEOWNERS ASSOCIATION, INC., BOARD OF
DIRECTORS OF CHESTNUT HOMEOWNERS ASSOCIATION, INC.,
JOE MONTAGNA, DAVID PULTORAK AND THOMAS MYERS,
DEFENDANTS-APPELLANTS.


PANZARELLA & COIA, P.C., ROCHESTER (RICHARD COIA OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

LECLAIR KORONA VAHEY COLE LLP, ROCHESTER (LAURIE A. VAHEY OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Evelyn
Frazee, J.), entered September 28, 2015. The order denied defendants’
motion to dismiss the amended complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion in part and
dismissing the fifth cause of action, and as modified the order is
affirmed without costs.

     Memorandum: Plaintiffs are owners of an individual lot within a
townhouse complex, and also members of defendant Chestnut Homeowners
Association, Inc. (HOA). They commenced this action seeking, inter
alia, monetary damages after defendants made alterations to and/or
performed work on a protective berm located in the complex’s common
area near plaintiffs’ lot. In their amended complaint, plaintiffs
allege that the alterations to the berm resulted in a loss of
seclusion and privacy for their lot, thus lowering its value.
Plaintiffs asserted six causes of action, for breach of contract,
breach of fiduciary duty, intentional damage of property, negligence,
trespass pursuant to RPAPL 861, and an accounting, respectively.

     As limited by their brief, defendants contend that Supreme Court
erred in denying their motion to dismiss the first through fifth
causes of action for failure to state a claim because plaintiffs
failed to allege that they suffered damages or an injury (see CPLR
3211 [a] [7]). We reject that contention. In the amended complaint,
plaintiffs allege that defendants “negligently, recklessly and/or
intentionally razed” the protective berm in violation of the HOA by-
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                                                         CA 16-01297

laws as well as its “Declaration of Protective Covenants, Conditions,
Restrictions, Easements, Charges and Liens” (Declaration). Plaintiffs
further allege that, as a result of the destruction of the berm, their
property “is no longer secluded and protected” and has “decreased in
value.” Additionally, plaintiffs allege that their “use and enjoyment
of their property has been reduced due to the lack of privacy and
seclusion.”

     “It is axiomatic that plaintiff[s’] [amended] complaint is to be
afforded a liberal construction, that the facts alleged therein are
accepted as true, and that plaintiff[s] [are] to be afforded every
possible favorable inference in order to determine whether the facts
alleged in the complaint ‘fit within any cognizable legal theory’ ”
(Palladino v CNY Centro, Inc., 70 AD3d 1450, 1451, quoting Leon v
Martinez, 84 NY2d 83, 87-88). The allegations in a complaint,
however, “cannot be vague and conclusory . . . , and [b]are legal
conclusions will not suffice” (McFadden v Schneiderman, 137 AD3d 1618,
1619 [internal quotation marks omitted]). We conclude the factual
allegations in the amended complaint as to the damages and/or injury
suffered by plaintiffs are sufficient to avoid dismissal of the first
five causes of action pursuant to CPLR 3211 (a) (7). We note that
whether plaintiffs can “ultimately establish [their] allegations is
not part of the calculus in determining a motion to dismiss” (EBC I,
Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19).

     We reject defendants’ further contention that they are entitled
to dismissal of the first five causes of action because they acted
within the authority afforded to them pursuant to the by-laws and the
Declaration. To the contrary, plaintiffs allege that defendants
violated various provisions of the by-laws and the Declaration, and
those allegations are not flatly contradicted by the evidence in the
record (see Matter of Niagara County v Power Auth. of State of N.Y.,
82 AD3d 1597, 1599, lv dismissed in part and denied in part 17 NY3d
838), vague and conclusory, or bare legal conclusions (see Rios v Tiny
Giants Daycare, Inc., 135 AD3d 845, 845). Plaintiffs’ allegations are
thus deemed to be true for purposes of defendants’ motion to dismiss
(see Leon, 84 NY2d at 87-88).

     Notwithstanding the above conclusions, we agree with defendants
that the court erred in denying the motion to dismiss with respect to
the fifth cause of action, which alleges a claim for trespass pursuant
to RPAPL 861, and we therefore modify the order accordingly. That
section “applies to any person who[,] without the consent of the owner
thereof, cuts, removes, injures or destroys, or causes to be cut,
removed, injured or destroyed, any underwood, tree or timber on the
land of another . . . or damages the land in the course thereof”
(Vanderwerken v Bellinger, 72 AD3d 1473, 1474 [internal quotation
marks omitted]; see Matter of Svenson [Swegan], 133 AD3d 1279, 1281).
Although plaintiffs’ allegations of damages and/or injury to their own
lot are sufficient to avoid the dismissal of the first four causes of
action, their RPAPL 861 cause of action is distinguishable because it
is necessarily premised on the damage to the complex’s common area
itself, which is owned by the HOA. The “ ‘remedy created by RPAPL 861
extends only to the actual owner of the property allegedly harmed’ ”
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                                                        CA 16-01297

(Shute v McLusky [appeal No. 2], 96 AD3d 1360, 1362; see Cornick v
Forever Wild Dev. Corp., 240 AD2d 980, 980). Although plaintiffs are
members of the HOA, they nevertheless lack standing to sue in their
individual capacities for damage to the complex’s common areas (see
Davis v Prestige Mgt. Inc., 98 AD3d 909, 910).




Entered:   February 10, 2017                   Frances E. Cafarell
                                               Clerk of the Court
