Private Nuisance Archives - New York Appellate Digest

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, 2020/0 Comments/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, 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

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

Nuisance, Private Nuisance, Real Property Law, Trespass

TRESPASS AND NUISANCE ACTIONS BASED UPON WATER RUNOFF FROM NEIGHBORING PROPERTY SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiffs’ trespass and nuisance actions based upon water run-off from neighboring property should not have been dismissed:

It is well-settled that “[l]andowners making improvements to their land are not liable for damage caused by any resulting flow of surface water onto abutting property as long as the improvements are made in a good faith effort to enhance the usefulness of the property and no artificial means, such as pipes and drains, are used to divert the water thereon” … . The diversion of water by artificial means, however, is not strictly limited to the use of pipes, drains and ditches and may otherwise be established where it is demonstrated that the net effect of defendants’ improvements “so changed, channeled or increased the flow of surface water onto [the] plaintiff[s]’ land as to proximately cause damage[] to the property” … . …

Based on the … competing affidavits, we find that there are triable issues of fact as to whether defendants’ improvements to the subject parcels diverted surface water onto plaintiffs’ property by artificial means … , were made in bad faith or otherwise altered the elevation and grade of the Town Homes’ parcel with the express purpose of diverting water onto plaintiffs’ property … . …

Additionally, plaintiffs were not required to prove an intentional intrusion or intentional interference with their right to use and enjoy the property in order to sustain their private nuisance claim — such a claim being actionable upon proof that defendants’ invasion was either intentional, negligent or reckless, or otherwise involved abnormally dangerous activities … .. Further, to the extent that plaintiffs’ nuisance cause of action relies entirely on proof of defendants’ allegedly negligent conduct, the nuisance and negligence claims are essentially duplicative of one another and, therefore, Supreme Court’s dismissal of plaintiffs’ negligence claim was appropriate under the circumstances … . 517 Union St. Assoc. LLC v Town Homes of Union Sq. LLC, 2017 NY Slip Op 08925, Third Dept 12-21-17

REAL PROPERTY (TRESPASS AND NUISANCE ACTIONS BASED UPON WATER RUNOFF FROM NEIGHBORING PROPERTY SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (THIRD DEPT))/TRESPASS (TRESPASS AND NUISANCE ACTIONS BASED UPON WATER RUNOFF FROM NEIGHBORING PROPERTY SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (THIRD DEPT))/NUISANCE (TRESPASS AND NUISANCE ACTIONS BASED UPON WATER RUNOFF FROM NEIGHBORING PROPERTY SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (THIRD DEPT))

December 21, 2017/by CurlyHost

Municipal Law, Nuisance, Private Nuisance, Real Property Law, Trespass

PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATED ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff’s motion for leave to file a late notice of claim should have been granted. Plaintiff alleged defendant town caused water and debris to drain onto his property causing the foundation of his house to cave in. In finding plaintiff should have been allowed to file a late notice of claim, the court explained the factors that should be considered and the flaws in Supreme Court’s analysis, which focused on the excuse for the delay and the merits of the underlying action. The most important factors are the defendant’s actual notice of the facts of the case within the statutory period and the absence of prejudice:

While a reasonable excuse for the delay is a statutory factor … , it is well settled that “‘the failure to offer a reasonable excuse for the delay in filing a notice of claim is not fatal where actual [knowledge] was had and there is no compelling showing of prejudice'” … . Similarly, although Supreme Court was permitted to consider the merits of the underlying claim, leave should only be denied on this basis when the claim is “‘patently meritless'” … , which was not established here.

Upon our consideration of all of the pertinent statutory factors, we find that, although plaintiff did not provide a reasonable excuse for his delay, he adequately set forth proof of actual knowledge and lack of substantial prejudice such that his motion should have been granted. Daprile v Town of Copake, 2017 NY Slip Op 08243, Third Dept 11-22-17

MUNICIPAL LAW (NOTICE OF CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))/REAL PROPERTY LAW (TRESPASS, NUISANCE, MUNICIPAL LAW, NOTICE OF CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))/TRESPASS (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))/NUISANCE (MUNICIPAL LAW, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS TRESPASS-NUISANCE ACTION AGAINST THE TOWN SHOULD HAVE BEEN GRANTED, PLAINTIFF DEMONSTRATE ACTUAL NOTICE AND LACK OF PREJUDICE (THIRD DEPT))

November 22, 2017/by CurlyHost

Municipal Law, Negligence, Nuisance, Private Nuisance

MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT).

The Second Department determined plaintiff’s action for negligent maintenance of a drainage system, causing flooding, properly survived summary judgment. The court noted that no cause of action lies against a municipality for negligent design of a drainage system. The court further noted that a nuisance cause of action should have been dismissed as duplicative of the negligent maintenance cause of action:

To the extent the plaintiff contends that the Village was negligent in failing to improve or renovate the drainage system, dismissal of that cause of action was properly directed. Evidence as to the Village’s alleged failure to undertake improvements or renovations to the facilities related only to the design of the system, for which the Village may not be held liable … .

However, the Village failed to satisfy its prima facie burden of eliminating all triable issues of fact as to whether it negligently maintained the culvert and drainage system. * * *

A defendant is subject to liability for a private nuisance if the defendant’s conduct is a legal cause of the invasion of an interest in the private use and enjoyment of land, and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities … . … A nuisance based on negligence is but a single wrong, whether characterized as negligence or nuisance … , and the plaintiff may recover only once for harm suffered, regardless of how the causes of action are denominated … . Since the complaint alleges a cause of action for negligent maintenance, the Supreme Court should have granted that branch of the Village’s motion which was for summary judgment dismissing the cause of action alleging nuisance as duplicative of the cause of action alleging negligent maintenance … . Trulio v Village of Ossining, 2017 NY Slip Op 05993, Second Dept 8-2-17

MUNICIPAL LAW (DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/NEGLIGENCE (MUNICIPALITY, DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/DRAINAGE SYSTEM (MUNICIPAL LAW, NEGLIGENCE, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))/NUISANCE (MUNICIPAL LAW, DRAINAGE SYSTEM, MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT))

August 2, 2017/by CurlyHost

Nuisance, Private Nuisance, Real Property Law, Trespass

QUESTION OF FACT WHETHER WATER RUNOFF CONSTITUTED TRESPASS AND NUISANCE.

The Second Department, reversing Supreme Court, determined summary judgment should not have been granted to defendants in this action alleging trespass and nuisance caused by water runoff:

A landowner will not be liable for damages to abutting property caused by the flow of surface water due to improvements to his or her land, provided that the improvements were made in good faith to make the property fit for some rational use, and that the water was not drained onto the other property by artificial means, such as pipes and ditches … . …

… [P]laintiffs raised triable issues of fact … by adducing evidence, inter alia, that a gutter downspout located on the defendants’ property and a drainage pipe installed under the low point in the defendants’ new driveway diverted rainwater runoff onto the plaintiffs’ properties … . Biaglow v Elite Prop. Holdings, LLC, 2016 NY Slip Op 04373, 2nd Dept 6-8-16

REAL PROPERTY (QUESTION OF FACT WHETHER WATER RUNOFF CONSTITUTED TRESPASS AND NUISANCE)/TRESPASS (QUESTION OF FACT WHETHER WATER RUNOFF CONSTITUTED TRESPASS AND NUISANCE)/NUISANCE (QUESTION OF FACT WHETHER WATER RUNOFF CONSTITUTED TRESPASS AND NUISANCE)/WATER RUNOFF (QUESTION OF FACT WHETHER WATER RUNOFF CONSTITUTED TRESPASS AND NUISANCE)

June 8, 2016/by CurlyHost

Landlord-Tenant, Negligent Infliction of Emotional Distress, Nuisance, Private Nuisance, Real Property Law

“Extreme and Outrageous Conduct” Is Not an Element of “Negligent Infliction of Emotional Distress”—Elements of Private Nuisance, Intentional Infliction of Emotional Distress, and Negligent Infliction of Emotional Distress Explained in Some Depth—Complaint Should Have Been Dismissed for Failure to State a Cause of Action

The Second Department, in a full-fledged opinion by Justice Miller, reversed Supreme Court and dismissed the complaint for failure to state a cause of action. The opinion is important because it clarified “negligent infliction of emotional distress,” explaining that “extreme and outrageous conduct” is not one of the elements. Although the court held that the complaint did not state causes of action for intentional infliction of emotional distress, negligent infliction of emotional distress, or private nuisance, the nature of those causes of action was explained in some depth. The defendants owned property next door to the plaintiffs’ home. The defendants rented to tenants, who were not parties to the lawsuit. The tenants apparently held loud parties at which drugs were used and sold. The plaintiffs at one point called the police to complain about the tenants’ behavior. Subsequently two masked men entered plaintiffs’ home to intimidate them. Plaintiff-husband ultimately shot the two intruders and in the process accidently shot his dog. The men were arrested by the police. The opinion is too detailed to properly summarize here, but the essence of the court’s ruling is that the tenants’ behavior was not sufficiently linked to any acts or omissions by the defendants. The court wrote:

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” … . * * * … [T]he duty to abate a private nuisance existing on real property arises from the power to possess the property and control the activities that occur on it. Accordingly, a landowner who has relinquished possession of his or her property will not be liable for a private nuisance that arises on the property if the landowner neither created the nuisance nor had notice of it at the time that possession of the property was transferred … . In the absence of any such knowledge or consent to the objectionable activity which may be attributable to the landowner at the time the lease is executed, the common-law duty to abate a nuisance that exists during the course of a tenancy lies with the tenant, in his or her capacity as the one in possession of the property … .

… [U]nder New York law, a cause of action alleging intentional infliction of emotion distress “has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress” … . * * * ” Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'” … . * * * Although the individuals who broke into the plaintiffs’ home may have engaged in extreme and outrageous conduct, the complaint alleges no basis upon which the intruders’ conduct may be imputed to the defendants. The defendants’ intentional conduct, as alleged in the complaint, amounts to nothing more than a failure to ensure that their tenants and their friends refrained from committing the acts described in the complaint. * * *

[Re: negligent infliction of emotional distress] …. [T]o the extent that certain of this Court’s past decisions have indicated that extreme and outrageous conduct is an element of negligent infliction of emotional distress … , those cases should no longer be followed. … [A] breach of a duty of care “resulting directly in emotional harm is compensable even though no physical injury occurred” … . However, the mental injury must be “a direct, rather than a consequential, result of the breach” … , and the claim must possess “some guarantee of genuineness” … . … Applying the correct standard to the complaint in this case, we conclude that the plaintiffs’ failure to adequately allege extreme and outrageous conduct is not fatal to their cause of action alleging negligent infliction of emotional distress … . Nevertheless, we conclude that the complaint is deficient in another respect, as it failed to adequately allege facts that would establish that the mental injury was “a direct, rather than a consequential, result of the breach” … . Taggart v Costabile, 2015 NY Slip Op 05464, 2nd Dept 6-24-15

June 24, 2015/by CurlyHost