Nuisance – New York Appellate Digest

THE CITY’S COMPLAINT ALLEGED A CAUSE OF ACTION FOR PUBLIC NUISANCE BASED UPON DEFENDANT’S SALE OF UNSTAMPED, UNTAXED CIGARETTES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff-city’s complaint stated a cause of action for public nuisance against defendant City Tobacco House for selling unstamped, untaxed cigarettes:

… [T]he complaint alleged that City Tobacco House was a commercial establishment where several violations of Tax Law § 1814(b) and Administrative Code § 11-4012(b) had occurred during the six-month period preceding the commencement of this action. On one occasion, law enforcement officers allegedly recovered 8.4 cartons of untaxed cigarettes at the subject premises, and one person was arrested and charged with violating Tax Law § 1814. On another occasion, 28 packs of untaxed cigarettes allegedly were recovered from the subject premises, and one person was arrested and charged with violating Tax Law § 1814. On two other occasions, an undercover police officer allegedly purchased one pack of untaxed cigarettes from an employee in the subject premises. On another occasion, the execution of a search warrant at the subject premises allegedly resulted in the seizure of 64 packs of untaxed cigarettes and the arrest of one person. * * *

The allegations of unlawful conduct … , along with the allegation in the complaint that City Tobacco House knowingly conducted or maintained the subject premises as a place where persons gathered for purposes of engaging in conduct that violated Tax Law § 1814 and Administrative Code § 11-4012(b), were sufficient to allege the commission of criminal nuisance in the second degree, as defined in Penal Law § 240.45. Thus, having alleged facts supporting the proposition that City Tobacco House was a place “wherein there is occurring a criminal nuisance as defined in section 240.45 of the penal law” (Administrative Code § 7-703[l]), the complaint validly alleged the existence of a public nuisance at the subject premises. City of New York v Land & Bldg. Known as 4802 4th Ave., 2022 NY Slip Op 05988, Second Dept 10-26-22

Practice Point: Here the city’s allegation defendant sold unstamped, untaxed cigarettes stated a cause of action for public nuisance.

October 26, 2022/by Bruce Freeman

Landlord-Tenant, Municipal Law, Nuisance, Private Nuisance, Tenant Harassment

TENANTS’ CAUSES OF ACTION FOR TENANT (STATUTORY) HARASSMENT, PRIVATE NUISANCE, ASSAULT, BREACH OF THE WARRANTY OF HABITABILITY, AS WELL AS THE CLAIM FOR PUNITIVE DAMAGES, REINSTATED (FIRST DEPT).

The First Department, reversing Supreme Court, reinstated plaintiffs-tenants’ causes of action for statutory harassment, private nuisance, assault, breach of the warranty of habitability, as well as the demand for punitive damages, in this action by tenants against the landlord alleging both habitability-issues and the landlord’s imminent threat to use force. With respect to the tenant (statutory) harassment cause of action, the court wrote:

Plaintiffs alleged … there were repeated interruptions of essential services such as heat, hot water, gas, and electricity, as well as disruptions in elevator service, phone, television, and internet service; large amounts of construction dust, including lead dust, in the public hallways; flooding and mold on the tenth floor; rat and vermin infestations; a lack of building security in the lobby and a lack of a fire safety system. * * *

The complaint states a cause of action for harassment under Administrative Code of City of NY §§ 27—2005(d) and 27—2115(m), as Supreme Court is “a court of competent jurisdiction” for the purposes of Administrative Code § 27—2115(m)(2) … . Contrary to the motion court’s determination, the statute expressly provides that only claims arising [from conditions in the building, that is, under subparagraphs b, c, and g of Administrative Code § 27-2004(a)(48)(ii), require the existence of a predicate violation to state a claim for harassment. Here, plaintiffs assert their first cause of action under Administrative Code § 27-2004(a)(48)(ii)(a), based on allegations that defendant Chelsea Hotel Owner, LLC’s principal, defendant Ira Drukier, was “making express or implied threats that force will be used” against plaintiffs, and therefore no predicate violation was required for this cause of action. …

On the third cause of action, for harassment arising from deprivation of services, plaintiffs state a claim under the statute by asserting that the alleged conditions were the subject of violations that, if established, would support a claim for harassment (see Robinson v Day, 103 AD3d 584, 587 [1st Dept 2013] [“A complaint need only ‘allege the misconduct complained of in sufficient detail to inform the defendants of the substance of the claims'”]). Evidence of the specific violations issued in connection with the alleged conditions may be obtained in discovery as contemplated by the statute (see Administrative Code § 27-2115[h][2][ii]). Berg v Chelsea Hotel Owner, LLC, 2022 NY Slip Op 01511. First Dept 3-10-22

Practice Point: The courts have recently been fleshing out the proof requirements for tenant (statutory) harassment under the NYC Administrative Code. Here, both the habitability issues and the landlord’s assaultive behavior (imminent threat of force) fit into the criteria for a valid tenant (statutory) harassment cause of action.

March 10, 2022/by Bruce Freeman

Civil Procedure, Landlord-Tenant, Municipal Law, Nuisance, Tenant Harassment

IN THIS TENANT HARASSMENT AND PRIVATE NUISANCE ACTION BY TENANTS AGAINST THE LANDLORD, SUPREME COURT SHOULD HAVE GRANTED THE PRELIMINARY INJUNCTION ENTIRELY PROHIBITING VIDEO CAMERAS IN THE INTERIOR OF THE BUILDING (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the tenant-plaintiffs were entitled to a preliminary injunction prohibiting the landlord from maintaining video cameras in the interior of the building. Supreme Court had only prohibited video cameras outside the bathrooms. The tenants alleged the landlord was taking actions designed to force them to leave and alleged causes of action for tenant harassment and private nuisance:

Generally, the decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court … . “[A] movant must establish (1) a probability of success on the merits, (2) a danger of irreparable injury in the absence of an injunction, and (3) a balance of the equities in the movant’s favor” … . In granting, in part, those branches of the plaintiffs’ motion which were for a preliminary injunction enjoining the defendants from operating the video cameras in the interior portions of the property and from conducting inspections on the property without reasonable notice, the court properly, in effect, determined that the plaintiffs had established a probability of success on the merits, a danger of irreparable injury, and that the equities favor them. The court, however, improvidently exercised its discretion in limiting that preliminary injunction to enjoining the defendants only from operating video cameras that capture persons entering or exiting any bathrooms in the property. Under the circumstances of this case, the court should have granted that branch of the plaintiffs’ motion in its entirety, and preliminarily enjoined the defendants from operating video cameras in the interior portions of the property. Suchdev v Grunbaum, 2022 NY Slip Op 01195, Second Dept 2-23-22

February 23, 2022/by Bruce Freeman

Intentional Infliction of Emotional Distress, Landlord-Tenant, Municipal Law, Nuisance, Tenant Harassment

PLAINTIFFS-TENANTS STATED CLAIMS FOR TENANT HARASSMENT, PRIVATE NUISANCE, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND PUNITIVE DAMAGES FOR FAILURE TO PROVIDE ELECTRICITY, WATER, HEAT AND VENTILATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff-tenants stated claims for tenant (statutory) harassment, private nuisance, intentional infliction of emotional distress and punitive damages in connection with failure to provide electricity, water, heat and ventilation:

The complaint states a cause of action for harassment under Administrative Code of City of NY §§ 27-2005 (d) and 27-2115 (m) … . Namely, it sufficiently alleges that defendants failed to provide essential services, including electricity, water, heat, and ventilation, resulting in violations of the Housing Maintenance Code, and that that failure was calculated to and did cause plaintiffs to vacate their apartment … . …

Defendants do not oppose the reinstatement of the claims for private nuisance or intentional infliction of emotional distress, opting to litigate those claims on the merits. However, contrary to defendants’ contention, punitive damages may be appropriate under both causes of action if the alleged acts are shown to be intentional or malicious … . Carlson v Chelsea Hotel Owner, LLC, 2022 NY Slip Op 01117, First Dept 2-22-22

February 22, 2022/by Bruce Freeman

Environmental Law, Land Use, Municipal Law, Nuisance

ALLOWING DRIVING AND PARKING ON A LONG ISLAND BEACH MAY CONSTITUTE A PRIVATE AND PUBLIC NUISANCE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the causes of action for private and public nuisance against the town and village, based upon the code provisions and rules allowing vehicles to drive and park on the beach, should not have been dismissed:

… [P]hotographs of the subject beach area as well as the affidavits of [plaintiff] and her family describing the conditions on the beach raised triable issues of fact as to whether driving and parking in the subject beach area, in the manner and at the intensity allegedly occurring at the time of this action, was of an unreasonable character. …

“A public nuisance exists for conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons” … . Here, contrary to the court’s conclusion, triable issues of fact existed as to whether summer daytime beach driving and parking in the subject beach area, in the manner and at the intensity allegedly occurring at the time of this action, endangered the health and safety of members of the public who use that portion of the beach as well as the beach itself, including the lands seaward of the high-water line, which are held in trust for the public. Thomas v Trustees of the Freeholders & Commonalty of the Town of Southampton, 2022 NY Slip Op 00894, Second Dept 2-9-22

February 9, 2022/by Bruce Freeman

Environmental Law, Negligence, Nuisance

NOXIOUS ODORS FROM A LANDFILL DID NOT SUPPORT THE PUBLIC NUISANCE AND NEGLIGENCE CAUSES OF ACTION; COMPLAINT DISMISSED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, over a dissent, reversing Supreme Court, determined the public nuisance and negligence causes of action stemming from odors from a landfill should have been dismissed. The public nuisance cause of action alleged only injury to the public at large, not the required special injury unique to the parties. The negligence cause of action did not allege any tangible property damage or physical injury:

… [P]laintiffs here have not asserted an injury that is different in kind from the relevant community at large, which, in our view, consists of the other homeowners and renters impacted by the landfill’s odors … . * * *

To recover in negligence, a plaintiff must sustain either physical injury or property damage resulting from the defendant’s alleged negligent conduct … . …

… [T]he noxious odors at issue are transient in nature and do not have a continuing physical presence. … [P]laintiffs have not alleged any tangible property damage or physical injury resulting from exposure to the odors. … [T]he economic loss resulting from the diminution of plaintiffs’ property values is not, standing alone, sufficient to sustain a negligence claim under New York law … . Davies v S.A. Dunn & Co., LLC, 2021 NY Slip Op 05751, Third Dept 10-21-21

October 21, 2021/by Bruce Freeman

Civil Procedure, Eminent Domain, Municipal Law, Nuisance, Trespass

NO NOTICE OF CLAIM WAS REQUIRED IN THIS NUISANCE, TRESPASS AND INVERSE TAKING ACTION AGAINST A VILLAGE BECAUSE MONEY DAMAGES WERE INCIDENTAL TO THE DEMAND FOR INJUNCTIVE RELIEF (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a General Municipal Law notice of claim was not required in this action for nuisance, trespass, inverse taking and injunctive relief against a village. The village had installed drainage pipes in the roadway near plaintiff’s property and then repaved the road. Plaintiff alleged water runoff from the roadway flooded his property caused the foundation to collapse. Because the action was essentially for money. No notice of claim was necessary because the money damages were deemed incidental to the demand for injunctive relief. The court noted that a trespass and a taking may be pled in the alternative:

“[I]t is well settled that a notice of claim is not required for an action brought in equity against a municipality where the demand for money damages is incidental and subordinate to the requested injunctive relief” … . Viewing the amended complaint in the light most favorable to plaintiff … , we conclude that the four remaining causes of action alleged continuing harm and primarily sought equitable relief … .

… “[T]he coincidental character of the money damages sought is ‘truly ancillary to an injunction suit, i.e., there is a continuing wrong presenting a genuine case for the exercise of the equitable powers of the court’ ” … . …

Although “[a]n entry cannot be both a trespass and a taking” … , the issue here is the sufficiency of the pleading, and plaintiff sufficiently pleaded both causes of action, albeit in the alternative. Friscia v Village of Geneseo, 2021 NY Slip Op 04793, Fourth Dept 8-26-21

August 26, 2021/by Bruce Freeman

Contract Law, Negligence, Nuisance, Real Property Law

PLAINTIFF ALLEGED STORM WATER RUNOFF FROM DEFENDANT’S PROPERTY FLOODED PLAINTIFF’S PROPERTY; THE NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS DUPLICATIVE OF THE NUISANCE CAUSE OF ACTION BECAUSE NUISANCE MAY INVOLVE INTENTIONAL CONDUCT (THIRD DEPT).

The Third Department, in a decision too detailed to fairly summarize here, determined Supreme Court properly denied summary judgment in this dispute about responsibility for storm water runoff which allegedly flooded plaintiff’s property. Supreme Court, however, erred in dismissing plaintiff’s negligence cause of action as duplicative of the nuisance cause of action:

The effect of defendant’s actions was to eliminate what was described as a retention pond on the cemetery land, causing the water to back up onto plaintiff’s property, which, prior to the placement of fill, had never experienced flooding. Since the fill was placed, plaintiff’s property flooded on four occasions, and plaintiff, after the first flood in February 2009, placed defendant on notice of the flood and the resulting damages and asked for its assistance to remedy the problem. Defendant denied responsibility for the flooding and took no remedial efforts to prevent further flooding. Although the causes of action for negligence and private nuisance arise out of the same undisputed facts, it cannot be said that the private nuisance claim arises solely out of the negligence claim. To the contrary, the facts as alleged in plaintiff’s complaint and bills of particulars demonstrate a viable theory of private nuisance based upon intentional conduct, i.e., that defendant eventually knew or should have known that its actions in placing the fill caused substantial interference and nevertheless continued it … . WFE Ventures, Inc. v GBD Lake Placid, LLC, 2021 NY Slip Op 04683, Third Dept 8-12-21

August 12, 2021/by Bruce Freeman

Municipal Law, Nuisance, Private Nuisance, Real Property Law

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

May 26, 2021/by Bruce Freeman

Immunity, Municipal Law, Negligence, Nuisance, Trespass

MUNICIPALITIES AND FIRE DEPARTMENTS PROTECTED BY GOVERNMENTAL IMMUNITY IN THIS WATER- DAMAGE LAWSUIT STEMMING FROM EXTINGUISHING A FIRE; NUISANCE AND TRESPASS ALSO PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined the negligence, nuisance and trespass action against the municipalities and the municipal fire departments were properly dismissed. A fire in defendant paper mill was probably the result of arson. In the course of putting out the fire, the fire department returned water to a canal using a deck gun which shot a stream of water over plaintiff’s building. Apparently water seeped into the building causing damage. The negligence cause of action was precluded by governmental immunity, the nuisance action was precluded by the lack of evidence of intent, and firefighters doing their jobs are not deemed trespassers. With regard to governmental immunity, the court wrote:

To address the claims against the fire department defendants first, even accepting that questions of fact exist as to whether they had a special relationship with plaintiff that would give rise to a claim for negligence … , they are nevertheless protected by the governmental immunity doctrine, which “shield[s] public entities from liability for discretionary actions taken during the performance of governmental functions” … . Under the doctrine, “[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general” … . There is no question that fire protection, and obtaining the water necessary to provide it, is a purely governmental function … . The key issue is therefore whether the fire department defendants’ purportedly negligent acts — choosing to use the deck gun and aim it in a direction that caused a rain to fall around the powerhouse — were discretionary in that they arose from “the exercise of reasoned judgment which could typically produce different acceptable results” … . Stevens & Thompson Paper Co. Inc. v Middle Falls Fire Dept., Inc., 2020 NY Slip Op 06996, Third Dept 11-25-20

November 25, 2020/by Bruce Freeman