Posted by: Patricia Salkin | November 28, 2012

NY Appellate Court Dismisses Private Nuisance Claim and Finds One Building on the Parcel was Entitled to Nonconforming Use Status but Another Building Was Not

In this action, two neighbors, Nemeth and Garcia, owned parcels adjacent to a parcel owned by the defendant, K-Tooling.  The neighbors individually commenced actions against K-Tooling, claiming that K-Tooling’s activity, which resulted in noise and odor emanation, constituted a private nuisance.  In addition, the neighbors also alleged K-Tooling’s use should be barred because it was in violation of the local code.  The trial court dismissed the neighbors’ causes of action and the appellate court affirmed. The appellate court provided that a private nuisance will lie where the plaintiffs can show the defendant intentionally acted, or failed to act, resulting in a substantial and unreasonable interference with the plaintiffs’ use and enjoyment of their land.  Applying the facts to this standard, the court found the trial court did not err in dismissing the neighbors’ nuisance claim.

The neighbors alleged that K-Tooling’s activities constituted a private nuisance because loud noises and odors emanated from the building all hours of the day, seven days a week, except during the winter.  However, the bench trial revealed external and objective sources of information to the contrary.  Upon receiving a complaint, the local health officer visited K-Tooling’s parcel and observed their manufacturing activities.  The officer found that the noises and odors were not substantial, but rather minimal.  In addition, an industrial hygienist from the Department of Labor found no issue with the noise generated by K-Tooling.  K-Tooling also provided the court with a video walk through of their manufacturing operations.  The Third Department found this objective evidence supported the Supreme Court’s dismissal of the neighbors’ action and affirmed.

The Third Department then addressed the neighbors’ appeal from the Supreme Court’s dismissal of their second cause of action.  The neighbors’ claimed that K-Tooling’s manufacturing operations should be terminated because they were in violation of the local code.  The local code provides that a land use may continue after the enactment of an ordinance making the use no longer permitted, essentially affording nonconforming use status.  The code also provides that the building or use shall not be enlarged unless to bring the use into conformance with the code, which in this case required a residential use.  The property became a nonconforming use in 1983.  In the early 1980’s, and additional building was constructed for the purpose of manufacturing.  Since the neighbors could not prove the building was constructed after the 1983 restriction, the neighbors could not prove a violative enlargement of a nonconforming use, and thus could not prove their cause of action.  Thus, the Third Department found the 1980’s addition could be used.  However, another addition was erected for manufacturing purposes in 2001.  This addition was after the use became a nonconforming use, and it enlarged the manufacturing operation.  The Third Department enjoined K-Tooling from using the 2001 addition for any purpose other than residential uses.

Nemeth v. K-Tooling, No. 510898, 2012 WL 5949724 (N.Y. A.D.3rd Dep’t, Nov. 29, 2012).

The opinion can be accessed here.


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