RANNEY v. TONAWANDA CITY SCHOOL DISTRICT (2018)

MEMORANDUM AND ORDER

Following defendant's completion of a capital improvement project that included the construction of a multimillion dollar sports stadium on a parcel of land adjacent to plaintiffs' residential properties, plaintiffs commenced this action alleging that defendant's use of its land constitutes a private nuisance and seeking an award of damages.  We reject defendant's contention that Supreme Court erred in denying its motion for summary judgment dismissing the complaint.

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” (Matteliano v. Skitkzi, 85 A.D.3d 1552, 1553, 925 N.Y.S.2d 276 [4th Dept. 2011], lv denied 17 N.Y.3d 714, 2011 WL 4977184 [2011] [internal quotation marks omitted];  see Copart Indus. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 570, 394 N.Y.S.2d 169, 362 N.E.2d 968 [1977], rearg denied 42 N.Y.2d 1102, 399 N.Y.S.2d 1028, 369 N.E.2d 1198 [1977] ).  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 (see Schaefer v. Dehauski, 50 A.D.3d 1502, 1503, 857 N.Y.S.2d 378 [4th Dept. 2008];  see also Schillaci v. Sarris, 122 A.D.3d 1085, 1087, 997 N.Y.S.2d 504 [3d Dept. 2014] ).  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 (see e.g. Berenger v. 261 W. LLC, 93 A.D.3d 175, 182–183, 940 N.Y.S.2d 4 [1st Dept. 2012];  Broxmeyer v. United Capital Corp., 79 A.D.3d 780, 783, 914 N.Y.S.2d 181 [2d Dept. 2010] ).

We conclude that defendant's own submissions raised issues of fact precluding summary judgment (see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).  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 (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).  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.

We reject defendant's further contention that it established the affirmative defense of laches.  It is well established that laches is an equitable defense and “is inapplicable to actions at law” (Makarchuk v. Makarchuk, 59 A.D.3d 1094, 1095, 874 N.Y.S.2d 649 [4th Dept. 2009];  see Premier Capital, Inc. v. Dehaan, 122 A.D.3d 1414, 1415, 997 N.Y.S.2d 558 [4th Dept. 2014], lv denied 24 N.Y.3d 1102, 2 N.Y.S.3d 68, 25 N.E.3d 983 [2015] ).  This action is one at law inasmuch as the complaint alleges private nuisance and seeks only an award of money damages (see Pittsford Canalside Props., LLC v. Pittsford Vil. Green, 154 A.D.3d 1303, 1303–1305, 63 N.Y.S.3d 167 [4th Dept. 2017];  cf. Marlowe v. Elmwood, Inc., 34 A.D.3d 970, 971–972, 824 N.Y.S.2d 448 [3d Dept. 2006], lv denied 8 N.Y.3d 804, 831 N.Y.S.2d 106, 863 N.E.2d 111 [2007] ).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: