Nuisance Archives - New York Appellate Digest

Civil Procedure, Criminal Law, Nuisance, Public Nuisance, Sex Offender Registration Act (SORA)

COMPLAINT AGAINST THE DIOCESE OF BUFFALO ALLEGING SEXUAL ABUSE BY A PRIEST DID NOT STATE A CAUSE OF ACTION FOR PUBLIC NUISANCE (FOURTH DEPT).

The Fourth Department determined the complaint seeking damages and injunctive relief against the Diocese of Buffalo NY stemming from alleged sexual abuse by a priest did not state a cause of action for public nuisance based on common law and Penal Law 240.45 (criminal nuisance). The court noted that a nuisance suit in this context would conflict or compete with the classification system under the Sex Offender Registration Act and, to the extent plaintiff seeks damages, a suit pursuant to the Child Victims Act is available:

“Conduct does not become a public nuisance merely because it interferes with . . . a large number of persons. There must be some interference with a public right. A public right is one common to all members of the general public. It is collective in nature and not like the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured” … . Here, the complaint alleges the infringement of, at most, a common right of a particular subset of the community, i.e., a group of Roman Catholic parishioners in the area of the Diocese who attended or were active in the priest’s parishes. The complaint does not allege that the general public was exposed to the priest’s conduct, nor does it otherwise allege interference with a collective right belonging to all members of the public … . …

Penal Law § 240.45 does not imply a private right of action under the circumstances presented here. “Where a penal statute does not expressly confer a private right of action on individuals pursuing civil relief, recovery under such a statute may be had only if a private right of action may fairly be implied’ ” … . Three essential factors are considered in determining whether a private right of action may fairly be implied: “(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme” … . Golden v The Diocese of Buffalo, NY, 2020 NY Slip Op 03354, Fourth Dept, 6-12-20

June 12, 2020/0 Comments/by Bruce Freeman

Nuisance, Private Nuisance, Public Nuisance, Real Property Law

PUBLIC VERSUS PRIVATE NUISANCE EXPLAINED; BECAUSE DEFENDANTS SOLD THEIR PROPERTY, THE APPEAL RELATED TO THE INJUNCTION CAUSE OF ACTION WAS MOOT (THIRD DEPT).

The Third Department determined plaintiffs’ private nuisance cause of action should not have been dismissed, but the public nuisance cause of action was properly dismissed. The Third Department noted that, because defendants’ property had been sold, the injunction aspect of the case was moot. The defendants had put in a parking area and a retaining wall which plaintiffs’ alleged blocked their view of oncoming traffic making it dangerous for plaintiffs’ to pull out from their driveway:

Plaintiffs’ complaint alleges that defendants paved a significant area of their front yard and proceeded to park cars and trucks thereon, and, as a result, their view of oncoming traffic was significantly hindered when they used their driveway. As a consequence, they claimed that they suffered great anxiety, as they continually worried about being in a traffic accident. What plaintiffs can ultimately prove, or whether damages of this sort are recoverable, is not our concern when determining a motion to dismiss for failure to state a cause of action … . Rather, “the dispositive inquiry is whether plaintiffs have a cause of action and not whether one has been stated, i.e., whether the facts as alleged fit within any cognizable legal theory” … . Here, after applying the strict standards of a pre-answer motion to dismiss, we conclude that Supreme Court erred in dismissing plaintiffs’ cause of action for private nuisance.

… “A public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large” … . Plaintiffs have not alleged that defendants interfered with the use of a public place or public rights. The complaint alleges that plaintiffs and the public (pedestrian, cyclist or motorist) are at risk of suffering a collision. “[W]here the claimed injury is common to the entire community, a private right of action is barred” … . Moreover, we find without merit plaintiffs’ claim that they suffer a special damage in that they will suffer liability as a result of any collision that might occur. Even were we to conclude that this claim is not completely speculative, the injury proposed by plaintiffs is not different in kind, but merely in degree, to that which may be suffered by the public as a whole. As such, it does not qualify as a “special injury” so as to allow plaintiffs to bring a public nuisance cause of action … . Duffy v Baldwin, 2020 NY Slip Op 02836, Third Dept 5-14-20

May 14, 2020/by Bruce Freeman

Environmental Law, Nuisance, Public Nuisance, Real Property Law, Toxic Torts

ACTION AGAINST GAS COMPANY FOR CONTAMINATION OF REAL PROPERTY ACCRUED WHEN INJURY SHOULD HAVE BEEN DISCOVERED AND WAS TIME BARRED; ACTION FOR NUISANCE RELATING TO REMEDIATION EFFORTS, HOWEVER, IS SUBJECT TO A DIFFERENT STATUTE OF LIMITATIONS PROVISION AND WAS NOT TIME-BARRED (SECOND DEPT).

The Second Department determined the causes of action against a gas company to recover damages for contamination of real property were time-barred, but the nuisance actions stemming from remediation efforts were not time-barred:

“Generally, an action to recover damages for personal injury or injury to property must be commenced within three years of the injury” … . “[T]he three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances,” however, “shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier” (CPLR 214-c[2] …). “For purposes of CPLR 214-c, discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance, the injured party discovers the primary condition on which the claim is based'” … . …

… [T]he defendants here demonstrated that they undertook extensive efforts beginning in 1999 to inform and engage with property owners potentially affected by the contamination and remediation by conducting, among other things, door-to-door canvassing, direct mailings of newsletters and fact sheets, numerous public meetings, and highly visible and disruptive remediation work. The defendants also inspected the subject property twice in 2005 to determine whether certain remediation work between those inspections caused any damage, and mailed the results of their inspections to the plaintiff in 2006. … The defendants … established, prima facie, that the plaintiff should have discovered, through the exercise of reasonable diligence, the primary condition upon which its exposure-related claims were based prior to January 22, 2007 … . …

We disagree, however, with the Supreme Court’s determination that the causes of action to recover damages for public and private nuisance allegedly arising from the defendants’ remediation work were time-barred … . These causes of action are subject to the limitations period in CPLR 214(4) rather than CPLR 214-c(2) because they do not seek “to recover damages for personal injury or injury to property caused by the latent effects of exposure” … . Here, the papers submitted in support of the defendants’ motion demonstrated that there was no dispute that the defendants conducted remediation work in close proximity to the subject property shortly after new tenants signed a lease to occupy the space in 2008 … . Onder Realty, Inc. v Keyspan Corp., 2019 NY Slip Op 07406, Second Dept 10-16-19

October 16, 2019/by Bruce Freeman

Civil Procedure, Nuisance, Private Nuisance, Real Property Actions and Proceedings Law (RPAPL), Trespass

SUPREME COURT SHOULD HAVE GRANTED PLAINTIFF’S MOTION TO AMEND THE COMPLAINT, DESPITE THE PASSAGE OF SIX YEARS SINCE THE ACTION WAS COMMENCED, THE COURT DOES NOT EXAMINE THE MERITS OF THE PLEADING UNLESS THE LACK OF MERIT IS CLEAR AND FREE FROM DOUBT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend its complaint, which originally stemmed from the alleged encroachment of defendant’s pipes (since removed), should have been granted, despite the passage of six years (during which a default judgment was vacated):

The Supreme Court should have granted that branch of the plaintiff’s cross motion which was for leave to amend the complaint. Permission to amend a pleading should be “freely given” (CPLR 3025[b] …), where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that the amendment would prejudice or surprise the opposing party … . Mere lateness is not a basis for denying an amendment; ” [i]t must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine'” … . The burden of establishing prejudice is on the party opposing the amendment … .

Here, notwithstanding the lengthy gap in time between the commencement of the action and the plaintiff’s cross motion for leave to amend the complaint, the defendant has made no showing that it was surprised by the new allegations or would be significantly prejudiced … . Moreover, some portion of that delay is attributable to the defendant’s effort to vacate its default and the parties’ subsequent motion practice and negotiations, and there is no contention that discovery has been concluded … .

Contrary to the defendant’s contentions, the proposed amendment is not palpably insufficient or patently devoid of merit. “No evidentiary showing of merit is required under CPLR 3025(b)'” … , and “a court shall not examine the legal sufficiency or merits of a pleading unless [the] insufficiency or lack of merit is clear and free from doubt” … . The allegations of the proposed amendment and the submissions in support of it adequately set forth the requisite elements for causes of action alleging private nuisance and trespass … . Krakovski v Stavros Assoc., LLC, 2019 NY Slip Op 05112, Second Dept 6-26-19

June 26, 2019/by Bruce Freeman

Nuisance

NUISANCE COUNTERCLAIM BASED UPON PLAINTIFF’S PLAYING PIANO IN HER CONDOMINIUM SHOULD HAVE BEEN DISMISSED, NO SHOWING THE SOUND LEVEL WAS UNREASONABLE (FIRST DEPT).

he First Department, reversing Supreme Court, determined that plaintiff’s motion for summary judgment dismissing defendant’s (Harlan’s) nuisance counterclaim should have been granted. The nuisance counterclaim was based upon plaintiff’s playing piano in her condominium:

Plaintiff made a prima facie showing that her piano playing and piano lessons were reasonable by averring that these activities usually occurred during business hours on weekdays, they usually totaled less than 4½ hours a day, and her sound technician concluded that the noise emanating from her piano was within acceptable boundaries … . Harlan failed to raise a triable issue of fact in opposition because she did not submit any evidence showing that the level of sound that entered her apartment from plaintiff’s piano was unreasonable. Harlan’s reliance on the recordings by plaintiff’s sound technician is unavailing; the expert did not take any volume measurements in Harlan’s apartment and the recording taken in the condominium stairwell did not exceed that of a normal conversation. Leon v Harlan, 2019 NY Slip Op 04045, First Dept 5-23-19

May 23, 2019/by Bruce Freeman

Nuisance, Private Nuisance, Public Nuisance, Real Property Law

PLAINTIFFS’ COMPLAINT DID NOT STATE PRIVATE AND PUBLIC NUISANCE CAUSES OF ACTION BASED UPON SINKHOLES ON PLAINTIFFS’ LAND WHICH ALLEGEDLY RESULTED FROM THE FAILURE OF A BULKHEAD ON DEFENDANT’S PROPERTY (SECOND DEPT).

The Second Department determined the plaintiffs did not state causes of action for private and public nuisance based upon the alleged effects of a body of navigable tidal water (Henry Street Basin) which is adjacent to plaintiffs’ and defendant’s properties. Plaintiffs alleged a bulkhead built by defendant was falling into disrepair resulting in sinkholes on plaintiffs’ property:

A nuisance is the actual invasion of interests in land, and it may arise from varying types of conduct” … . In the present case, the private nuisance claim is predicated upon the defendant’s alleged negligence in maintaining its property. Where “a nuisance has its origin in negligence, negligence must be proven” … . Duty is an essential element of negligence … .

Here, the defendant had no duty to prevent the natural encroachment of public waters upon Sunlight’s property… . The “maxim” that “requires one so to use his lands as not to injure his neighbor’s . . . does not require one lot owner so to improve his lot that his neighbor can make the most advantageous use of his, or be protected against its natural disadvantages” … . Accordingly, the plaintiffs have not stated a cause of action sounding in private nuisance … .

The plaintiffs further failed to state a cause of action sounding in public nuisance. “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, the plaintiffs’ mere allegation that “[t]he deteriorated state of the Bulkhead [was] substantially certain to result in an interference with the public’s use or enjoyment of the Henry Street Basin and/or may endanger or injure the health of persons using the Henry Street Basin” was too conclusory and speculative to set forth a viable cause of action sounding in public nuisance. Sunlight Clinton Realty, LLC v Gowanus Indus. Park, Inc., 2018 NY Slip Op 06783, Second Dept 10-10-18

REAL PROPERTY LAW (NUISANCE, PLAINTIFFS’ COMPLAINT DID NOT STATE PRIVATE AND PUBLIC NUISANCE CAUSES OF ACTION BASED UPON SINKHOLES ON PLAINTIFFS’ LAND WHICH ALLEGEDLY RESULTED FROM THE FAILURE OF A BULKHEAD ON DEFENDANT’S PROPERTY (SECOND DEPT))/NUISANCE (PLAINTIFFS’ COMPLAINT DID NOT STATE PRIVATE AND PUBLIC NUISANCE CAUSES OF ACTION BASED UPON SINKHOLES ON PLAINTIFFS’ LAND WHICH ALLEGEDLY RESULTED FROM THE FAILURE OF A BULKHEAD ON DEFENDANT’S PROPERTY (SECOND DEPT))

October 10, 2018/by Bruce Freeman

Nuisance, Public Nuisance, Religion

PUBLIC NUISANCE CAUSE OF ACTION BROUGHT BY THE PLAINTIFF WHO ALLEGED SEXUAL ABUSE BY A PRIEST SHOULD HAVE BEEN DISMISSED, PLAINTIFF ALLEGED THE DIOCESE SHOULD HAVE RELEASED THE NAMES OF PRIESTS ACCUSED OF ABUSE (SECOND DEPT).

The Second Department determined the public nuisance cause of action, based upon the sexual abuse of plaintiff by a priest and the Diocese's failure to release the names of accused priests, should have been dismissed:

“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” … . “A public nuisance is a violation against the State and is subject to abatement or prosecution by the proper governmental authority” … . A public nuisance is actionable by a private person only where the person suffered special injury beyond that suffered by the community at large … .

Here, the complaint failed to identify any cognizable right common to all members of the general public that the Diocese has interfered with by, among other things, failing to disclose the names of priests who had been accused of, but neither charged with nor convicted of, molesting children … . Notwithstanding a moral or ethical duty to notify the public, or investigate and report instances of suspected child molestation, the complaint does not allege that the Diocese violated any laws recognizing the public's right to information regarding accusations of child molestation, or that the Diocese violated any legal duty to report such accusations to appropriate authorities. …

… The complaint does not allege that any member or employee of the Diocese is a mandated reporter, or that any such member or employee violated Social Services Law § 413 in failing to report to appropriate authorities allegations of suspected child abuse. …

Furthermore, although parish and Diocese property may be open to the public, it still is private property … . Monaghan v Roman Catholic Diocese of Rockville Ctr., 2018 NY Slip Op 06527, Second Dept 10-3-18

PUBLIC NUISANCE (SEXUAL ABUSE BY PRIESTS, PUBLIC NUISANCE CAUSE OF ACTION BROUGHT BY THE PLAINTIFF WHO ALLEGED SEXUAL ABUSE BY A PRIEST SHOULD HAVE BEEN DISMISSED, PLAINTIFF ALLEGED THE DIOCESE SHOULD HAVE RELEASED THE NAMES OF PRIESTS ACCUSED OF ABUSE (SECOND DEPT))/PRIESTS (SEXUAL ABUSE BY PRIESTS, PUBLIC NUISANCE CAUSE OF ACTION BROUGHT BY THE PLAINTIFF WHO ALLEGED SEXUAL ABUSE BY A PRIEST SHOULD HAVE BEEN DISMISSED, PLAINTIFF ALLEGED THE DIOCESE SHOULD HAVE RELEASED THE NAMES OF PRIESTS ACCUSED OF ABUSE (SECOND DEPT))/SEXUAL ABUSE (PRIESTS, (SEXUAL ABUSE BY PRIESTS, PUBLIC NUISANCE CAUSE OF ACTION BROUGHT BY THE PLAINTIFF WHO ALLEGED SEXUAL ABUSE BY A PRIEST SHOULD HAVE BEEN DISMISSED, PLAINTIFF ALLEGED THE DIOCESE SHOULD HAVE RELEASED THE NAMES OF PRIESTS ACCUSED OF ABUSE (SECOND DEPT))/SOCIAL SERVICES LAW (SEXUAL ABUSE BY PRIESTS, PUBLIC NUISANCE CAUSE OF ACTION BROUGHT BY THE PLAINTIFF WHO ALLEGED SEXUAL ABUSE BY A PRIEST SHOULD HAVE BEEN DISMISSED, PLAINTIFF ALLEGED THE DIOCESE SHOULD HAVE RELEASED THE NAMES OF PRIESTS ACCUSED OF ABUSE (SECOND DEPT))

October 3, 2018/by Bruce Freeman

Constitutional Law, Landlord-Tenant, Municipal Law, Nuisance, Public Nuisance

CITY ORDINANCE PROVISIONS REQUIRING A RENTAL PERMIT AND LIMITING OCCUPANCY OF RENTAL UNITS TO A “FAMILY” AS DEFINED IN THE ORDINANCE ARE NOT UNCONSTITUTIONAL (THIRD DEPT).

The Third Department determined that municipal code provisions requiring a rental permit and limiting the occupancy of rental units to a “family” as defined in the code were not unconstitutionally vague:

The record therefore reflects that the rental occupancy restriction was enacted to, among other things, serve a legitimate governmental interest in diminishing public nuisances created from the overcrowding of dwelling units occupied by transient residents … . Because the ordinance does not favor certain types of families over others, or restrict the size of unrelated persons living as a functionally equivalent family without also restricting the size of a traditional family, it does not suffer from the same constitutional infirmities as the ordinances in McMinn v Town of Oyster Bay (66 NY2d at 549) or Baer v Town of Brookhaven (73 NY2d 942, 943 [1989]). Moreover, the ordinance here contains objective criteria for rebutting the presumption that four or more persons living together in a single dwelling unit who are unrelated by blood, marriage or legal adoption do not constitute the functional equivalent of a traditional family … , and the occupancy restriction bears a reasonable relationship to the goals sought to be achieved by the ordinance. In light of the foregoing, plaintiffs have not established that the challenged provisions of the ordinance are unconstitutional … . Grodinsky v City of Cortland, 2018 NY Slip Op 05236, Third Dept 7-12-18

MUNICIPAL LAW (LANDLORD-TENANT, CITY ORDINANCE PROVISIONS REQUIRING A RENTAL PERMIT AND LIMITING OCCUPANCY OF RENTAL UNITS TO A “FAMILY” AS DEFINED IN THE ORDINANCE ARE NOT UNCONSTITUTIONAL (THIRD DEPT))/LANDLORD-TENANT (MUNICIPAL LAW, CITY ORDINANCE PROVISIONS REQUIRING A RENTAL PERMIT AND LIMITING OCCUPANCY OF RENTAL UNITS TO A “FAMILY” AS DEFINED IN THE ORDINANCE ARE NOT UNCONSTITUTIONAL (THIRD DEPT))/CONSTITUTIONAL LAW (MUNICIPAL LAW, LANDLORD-TENANT, CITY ORDINANCE PROVISIONS REQUIRING A RENTAL PERMIT AND LIMITING OCCUPANCY OF RENTAL UNITS TO A “FAMILY” AS DEFINED IN THE ORDINANCE ARE NOT UNCONSTITUTIONAL (THIRD DEPT))

July 12, 2018/by Bruce Freeman

Civil Procedure, Nuisance, Private Nuisance, Real Property Law, Trespass

PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT

The Second Department, reversing Supreme Court, determined plaintiffs’ motion for leave to replead a private nuisance and trespass action should have been granted. Plaintiffs alleged defendants had negligently planted and watered on their side of plaintiffs’ retaining wall, damaging the wall:

… [T]he court improvidently exercised its discretion in denying the plaintiffs’ motion, in effect, for leave to replead … . The standard to be applied on such a motion “is consistent with the standard governing motions for leave to amend pursuant to CPLR 3025″… . In particular, such motions “should be freely granted absent prejudice or surprise to the opposing party, unless the proposed amendment is devoid of merit or palpably insufficient”… .

The proposed amended complaint alleged that the defendants had (1) engaged in “digging, excavating, grading and altering the soil, past the property line with [the] plaintiffs’ property and abutting [the plaintiffs’] property and wall,” (2) planted bushes, shrubs, and trees, and added significant amounts of mulch on the plaintiffs’ property, near the property line, and along the plaintiffs’ wall, and (3) excessively watered the location where the work was performed. The amended complaint further alleged that the “lateral load and pressure has been increased as a result of the planting of trees, bushes, shrubs and plants and the lack of drainage” so as to damage the plaintiffs’ retaining wall. The complaint alleges that this conduct was negligent, and that it constituted a private nuisance and trespass. Contrary to the defendants’ contention, these amended causes of action were neither palpably insufficient nor patently devoid of merit … , and no unfair prejudice or surprise to the defendants would arise from permitting the amendment … . Chaikin v Karipas, 2018 NY Slip Op 04525, Second Dept 6-20-18

REAL PROPERTY (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 3025 (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRESPASS (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NUISANCE (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/RETAINING WALL (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

June 20, 2018/by Bruce Freeman

Nuisance, Private Nuisance, Real Property Law

PRIVATE NUISANCE CAUSE OF ACTION BASED UPON LIGHTS AND NOISE FROM A STADIUM PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department determined the private nuisance cause of action properly survived summary judgment:

The elements of a cause of action for private nuisance 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” … . The issue whether a defendant’s use of land constitutes a private nuisance generally turns on questions of fact that include the degree of interference and the reasonableness of the use under the circumstances … . Evidence of noise and other disturbances has been found sufficient to preclude an award of summary judgment dismissing a cause of action for private nuisance … .

We conclude that defendant’s own submissions raised issues of fact precluding summary judgment … . Defendant submitted plaintiffs’ deposition testimony, which established that the stadium has lights and a loudspeaker that they find disturbing. When there are events at the stadium, the lights and loudspeaker are used late into the evening, sometimes until 11:00 p.m. The lights shine directly into the home of one of the plaintiffs. In addition, spectators at those events make a disturbing amount of noise, and also stand near plaintiffs’ property lines drinking alcohol and throwing trash onto plaintiffs’ properties. We further conclude, in any event, that plaintiffs raised issues of fact in opposition to the motion… . Plaintiffs submitted the deposition testimony of defendant’s superintendent, who testified that defendant had intended to plant trees along the property lines to mitigate any interference with plaintiffs’ use of the property but had abandoned that plan. The superintendent also acknowledged that he understood why plaintiffs had concerns about defendant’s use of the property. Ranney v Tonawanda City Sch. Dist., 2018 NY Slip Op 03004, Fourth Dept 4-27-18

REAL PROPERTY (NUISANCE, PRIVATE NUISANCE CAUSE OF ACTION BASED UPON LIGHTS AND NOISE FROM A STADIUM PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT))/NUISANCE (PRIVATE NUISANCE CAUSE OF ACTION BASED UPON LIGHTS AND NOISE FROM A STADIUM PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT))/STADIUMS (NUISANCE, PRIVATE NUISANCE CAUSE OF ACTION BASED UPON LIGHTS AND NOISE FROM A STADIUM PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT))

April 27, 2018/by Bruce Freeman