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PLAINTIFF’S ACTION FOR PRIVATE NUISANCE ALLEGING DEFENDANTS’ AIR CONDITIONING UNIT IS TOO LOUD SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the private nuisance cause of action should not have been dismissed. Plaintiff alleged defendants’ air conditioning unit made too much noise:

The elements of a private nuisance cause of action are: “(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act” … . “[E]xcept for the issue of whether the plaintiff has the requisite property interest, each of the other elements is a question for the jury, unless the evidence is undisputed” … .

Here, the plaintiff stated a cause of action to recover damages for private nuisance by alleging that the defendants’ air conditioning and condenser units generated a noise level exceeding that permitted by the Code of the Town of Hempstead … , which interfered with the plaintiff’s use and enjoyment of his bedroom, garden, and patio, and diminished his property value … . Curry v Matranga, 2021 NY Slip Op 03304, Second Dept 5-26-21

 

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THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S FALL (INADEQUATE LIGHTING), DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED 2ND DEPT.
THE APPLICATION FOR A WARRANT FOR THE SEARCH OF DEFENDANT’S CELL PHONE DID NOT PROVIDE PROBABLE CAUSE FOR THE SEARCH; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT).
THE TURNOVER PETITION SEEKING REAL PROPERTY AND FUNDS TRANSFERRED TO DEFRAUD JUDGMENT CREDITORS SHOULD HAVE BEEN GRANTED (SECOND DEPT).
THE PRODUCTS LIABILITY AND BREACH OF WARRANTY CAUSES OF ACTION ALLEGING THE FAILURE OF AN IMPLANTED MEDICAL DEVICE WHICH ASSISTS THE HEART WERE PREEMPTED BY FEDERAL LAW; THE CAUSES OF ACTION ALLEGING NEGLIGENCE ON THE PART OF THE ENGINEERS WHO REPLACED THE LEAD TO THE DEVICE WERE NOT PREEMPTED (SECOND DEPT).
FAMILY COURT DID NOT HAVE THE POWER TO ORDER THE FINGERPRINTING OF PETITIONER IN A GUARDIANSHIP PROCEEDING.
STATEMENTS MADE BY ATTORNEY IN AFFIDAVIT SUBMITTED TO THE COURT WERE ABSOLUTELY PRIVILEGED, DEFAMATION ACTION PROPERLY DISMISSED.
THREE AND A HALF MONTH DELAY IN NOTIFYING THE INSURER OF THE LAWSUIT VIOLATED THE POLICY PROVISION REQUIRING NOTICE AS SOON AS PRACTICABLE; THE DISCLAIMER MAILED 29 DAYS AFTER NOTICE OF THE SUIT WAS RECEIVED BY THE INSURER WAS TIMELY AND PRECLUDED SUIT AGAINST THE INSURER (SECOND DEPT).
THE FEDERAL FELONY DID NOT QUALIFY AS A NEW YORK PREDICATE FELONY, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER (SECOND DEPT).

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