HARRIS v. MIRANDA (2023)

DECISION & ORDER

In an action, inter alia, to recover damages for nuisance, the plaintiff appeals from an order of the Supreme Court, Queens County (Richard G. Latin, J.), entered January 14, 2021.  The order denied the plaintiff's motion for summary judgment on the complaint and searched the record and awarded the defendants summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action, inter alia, to recover damages for nuisance, alleging that the defendants hosted several noisy parties at their home.  The defendants interposed an answer, denying that they were responsible for the alleged noise.  The plaintiff moved for summary judgment on the complaint, offering proof as to only three instances of excessive noise, two of which occurred in 2017 and one that occurred in May 2020.  In the order appealed from, the Supreme Court denied the plaintiff's motion and searched the record and awarded the defendants summary judgment dismissing the complaint.  The plaintiff appeals.  We affirm.

“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” (Redwood Prop. Holdings, LLC v. Christopher, 211 A.D.3d 758, 759, 177 N.Y.S.3d 895 [internal quotation marks omitted];  see Copart Indus., Inc. v. Consolidated Edison Co. of N.Y., Inc., 41 N.Y.2d 564, 570, 394 N.Y.S.2d 169, 362 N.E.2d 968).  “[N]ot every annoyance will constitute a nuisance.  Nuisance imports a continuous invasion of rights—a pattern of continuity or recurrence of objectionable conduct” (Domen Holding Co. v. Aranovich, 1 N.Y.3d 117, 124, 769 N.Y.S.2d 785, 802 N.E.2d 135 [internal quotation marks omitted]).

Here, the plaintiff failed to meet his prima facie burden of establishing his entitlement to judgment as a matter of law.  The plaintiff's evidence of nuisance consisted of three instances of excessive noise over the course of approximately three years.  Under the circumstances of this case, the evidence submitted in support of the plaintiff's motion failed to establish “a pattern of continuity or recurrence of objectionable conduct” (Domen Holding Co. v. Aranovich, 1 N.Y.3d at 124, 769 N.Y.S.2d 785, 802 N.E.2d 135 [internal quotation marks omitted];  see Hutcherson v. Hill, 161 A.D.3d 495, 495, 76 N.Y.S.3d 50;  Board of Mgrs. of Honto Condominium v. Red Apple Child Dev. Ctr., a Chinese Sch., 160 A.D.3d 580, 582, 76 N.Y.S.3d 136;  Duane Reade v. Reva Holding Corp., 30 A.D.3d 229, 237, 818 N.Y.S.2d 9), or that the incidents were substantial in nature and unreasonable in character (see Lewis v. Stiles, 158 A.D.2d 589, 590, 551 N.Y.S.2d 557).  Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the complaint, and searched the record and awarded the defendants summary judgment dismissing the complaint (see CPLR 3212[b];  Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429–430, 654 N.Y.S.2d 335, 676 N.E.2d 1178;  Schwartz v. Ramapo, 197 A.D.3d 753, 756, 153 N.Y.S.3d 172).

BARROS, J.P., GENOVESI, DOWLING and VOUTSINAS, JJ., concur.