On March 30, 2022, the Second Department issued a decision in City of New York v. Prudenti’s Rest. on the Riv., Inc., 2022 NY Slip Op. 02110, holding that questions of fact precluded summary judgment on a claim by the City for ejectment, explaining:
Contrary to its contention, the City failed to eliminate triable issues of fact as to whether the defendant lacks the right to occupy or use the disputed property. The City failed, among other things, to submit any evidence as to the scope of public assembly permits that were issued to the defendant. Under these circumstances, the City did not establish its prima facie entitlement to judgment as a matter of law on the causes of action alleging trespass and seeking ejectment.
Furthermore, the City did not establish its prima facie entitlement to injunctive relief directing the removal of encroachments upon the disputed property. RPAPL 871(1) provides that an action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land. Nothing herein contained shall be construed as limiting the power of the court in such an action to award damages in an appropriate case in lieu of an injunction or to render such other judgment as the facts may justify. In order to obtain injunctive relief pursuant to RPAPL 871(1), a party is required to demonstrate not only the existence of an encroachment, but that the benefit to be gained by compelling its removal would outweigh the harm that would result to the encroaching party from granting such relief. Here, the City failed to demonstrate the absence of any triable issues of fact concerning whether the balance of equities weighed in its favor.
(Internal quotations and citations omitted).