A CON EDISION TRANSFORMER MINI PAD WHICH ENCROACHED SIX INCHES ONTO PLAINTIFFS’ PROPERTY WAS A TRESPASS ENTITLING PLAINTIFFS TO NOMINAL DAMAGES; THE STICKER ON THE TRANSFORMER WARNING TO STAY THREE FEET AWAY FROM THE TRANSFORMER WAS A NUISANCE, AN INTANGIBLE INTRUSION, NOT A TRESPASS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the installation of a transformer mini pad by Con Edison which encroached six inches onto plaintiffs’ property was a trespass and defendant was liable for nominal damages of $1. The sticker on the mini pad warning people to stay three feet away was not a trespass. Rather the warning was an intangible intrusion constituting a nuisance:

 “‘[A] trespass claim represents an injury to the right of possession'” … . “[C]ourts have precluded trespass claims where the entry or intrusion was intangible, such as the occurrence of vibrations, shading of a plaintiff’s property, or a permeating odor or vapors of gasoline” … . “Generally, intangible intrusions, such as by noise, odor, or light alone, are treated as nuisances, not trespass [because] they interfere with nearby property owners’ use and enjoyment of their land, not with their exclusive possession of it”… .

“[N]ominal damages are presumed from a trespass even where the property owner has suffered no actual injury to his or her possessory interest” … . “Nominal damages are defined as a trifling sum awarded to a plaintiff in an action where there is no substantial loss or injury to be compensated, but still the law recognizes a technical invasion of his [or her] rights or a breach of the defendant’s duty” … . “These are formal damages as distinguished from real or substantial ones” … . Shrage v Con Edison Co., 2023 NY Slip Op 02694, Second Dept 5-17-23

Practice Point: A Con Edison transformer which encroached six inches onto plaintiffs’ land was a trespass entitled plaintiffs to nominal damages.

Practice Point: The sticker on the transformer warning to stay three feet away was a nuisance, an intangible intrusion, not a trespass.