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CONCERNED CITIZENS OF CEDAR HEIGHTS-WOODCHUCK HILL ROAD, by their Officers and Members, Bruce Shafiroff, Shirley Shafiroff, Christopher Janik, Elizabeth Mroziewick, Gary J. Lavine, Ajay Roy, Qeeta Roy, and Jing Yang Zhu, Plaintiffs-Appellants, v. DeWITT FISH AND GAME CLUB, INC., Defendant-Respondent.
Plaintiffs commenced this action seeking judgment permanently enjoining defendant from using its property as a shooting range. The first cause of action alleges that defendant's shooting range constitutes a private nuisance and the second and third causes of action allege that it constitutes a public nuisance by virtue of the impulse noise associated with the discharge of firearms. The fourth cause of action alleges that defendant's shooting range constitutes a public and private nuisance as the result of the discharge of lead shot into the air and land. Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint. Defendant submitted proof that, at the time of the commencement of the action, it was in compliance with the noise control ordinance of the Town of DeWitt, and plaintiffs failed to raise a triable issue of fact. Thus, the court properly granted defendant's motion insofar as it sought summary judgment dismissing the first three causes of action pursuant to General Business Law § 150(1). In addition, plaintiffs failed to show that the use of defendant's property as a shooting range substantially and unreasonably interferes with the use of their property (see Kolodziej v. Martin, 249 A.D.2d 941, 942, 672 N.Y.S.2d 555, lv. dismissed 92 N.Y.2d 919, 680 N.Y.S.2d 459, 703 N.E.2d 271; Christenson v. Gutman, 249 A.D.2d 805, 807-808, 671 N.Y.S.2d 835; see also Adams v. Berkowitz, 212 A.D.2d 557, 558, 622 N.Y.S.2d 565, lv. dismissed 86 N.Y.2d 778, 631 N.Y.S.2d 609, 655 N.E.2d 706). Thus, the court properly granted defendant's motion insofar as it sought summary judgment dismissing the first cause of action and that part of the fourth cause of action alleging private nuisance. Finally, plaintiffs “have failed to allege an injury different from that suffered by other residents in their community” arising from the use of defendant's property as a shooting range, and thus the court properly granted defendant's motion insofar as it sought summary judgment dismissing the second and third causes of action and that part of the fourth cause of action alleging public nuisance (Matter of Saks v. Petosa, 184 A.D.2d 512, 513, 584 N.Y.S.2d 321; see 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 N.Y.2d 280, 293-294, 727 N.Y.S.2d 49, 750 N.E.2d 1097).
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.
MEMORANDUM:
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Decided: February 07, 2003
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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