PETER A. DEANGELO, D/B/A PETE DEANGELO BUILDERS, APPELLANT v. TODD M.
BRAZAUSKAS ET AL.,DEFENDANTS, AND ANDREW J. KRAFT, RESPONDENT
86 N.Y.2d 746, 655 N.E.2d 165, 631 N.Y.S.2d 124
July 5, 1995
4 No. 176 (1995 NY Int. 177)
Decided July 5, 1995
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
John J. Ottaviano, for Appellant.
Mary C. Fitzgerald, for Respondent.
New York State Builders' Association, amicus curiae.
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs,
and the order of the Supreme Court reinstated. Plaintiff builder
constructed a home for defendants Brazauskas on a parcel of land
belonging to defendant Kraft due to the Brazauskas' mistaken belief as
to the true location of their land. Under these unique circumstances,
Supreme Court properly exercised its equity jurisdiction in directing
plaintiff, w hom it found "blameless," to remove the construction,
restore defendant Kraft's land to its pre-construction condition and
reimburse him for any damages caused by the removal (see, Berney v
Brodie, 26 AD2d 679). Strict application of the doctrine of accession,
which would entitle the true landowner to retain the house (see,
People ex. rel. International Nav. Co. v Barker, 153 NY 98, 100-01),
would result in a windfall to defendant Kraft and is inappropriate
here, where the proposed remedy o f removal is feasible, can make the
true owner whole (see generally, Dickinson, Mistaken Improvers of Real
Estate, 64 N.C. L. Rev 37 (1985)), and will avoid a forfeiture for
plaintiff builder, who asserted no claim of title or right, but merely
per formed his contract with defendants Brazauskas.
Order reversed, with costs, and order of Supreme Court, Niagara
County, reinstated, in a memorandum. Chief Judge Kaye and Judges
Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
Decided July 5, 1995
SNIPPETS:
PETER A. DEANGELO, D/B/A PETE DEANGELO BUILDERS, APPELLANT v. TODD M. BRAZAUSKAS ET
This memorandum is uncorrected and subject to revision before publication in the New York
John J. Ottaviano, for Appellant.
Mary C. Fitzgerald, for Respondent.
New York State Builders' Association,
The order of the Appellate Division should be reversed, with costs, and the order of the
Plaintiff builder constructed a home for defendants Brazauskas on a parcel of land belonging
Under these unique circumstances, Supreme Court properly exercised its equity jurisdiction in
Co. v Barker, 153 NY 98, 100-01), would result in a windfall to defendant Kraft and is
Order reversed, with costs, and order of Supreme Court, Niagara County, reinstated, in a
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
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