Posted by: Patricia Salkin | January 26, 2014

NY Appellate Court Finds Per Se Nuisance Claim Over Horse Pen Insufficient for Summary Judgment Absent Proof of a Substantial or Unreasonable Interference

Defendants, who purchased a neighboring property to the plaintiffs, hold a driveway easement at the edge of plaintiffs’ property and built a storm drain under the driveway in either 2005 or 2009. In 2010, plaintiffs commenced an action raising claims pursuant to RPAPL article 15 and for trespass to real property, alleging that the storm drain extends beyond the boundaries of defendants’ easement and onto plaintiffs’ unencumbered property. Defendants asserted counterclaims for private nuisance and per se nuisance based on the proximity of plaintiffs’ horse pen to their residence in violation of a local law, and moved for partial summary judgment on the per se nuisance counterclaim and for partial summary judgment dismissing plaintiffs’ trespass cause of action. Plaintiffs cross-moved for summary judgment dismissing the per se nuisance counterclaim. The trial court denied defendants’ motions and granted plaintiff’s cross motion.

On appeal, the court found that the trial court properly denied defendants’ motion for partial summary judgment dismissing plaintiffs’ trespass claim. The defendants failed to meet their initial burden to submit evidentiary proof to demonstrate their entitlement to judgment as a matter of law (i.e. to document their claim that the storm drain was constructed within the bounds of their easement), because defendants submitted only their deed, which does not mention the storm drain, photographs of the storm drain that do not reveal its location, and a survey of defendants’ property that does not show the storm drain. Since these submissions do not establish that no part of the storm drain is located on plaintiffs’ unencumbered property, defendants did not meet their prima facie burden to establish their entitlement to summary judgment dismissing the trespass claim.

The defendants also claim that the court erred in denying their motion for summary judgment on their counterclaim for per se nuisance and in granting plaintiffs’ cross motion for summary judgment dismissing this counterclaim. The per se nuisance claim was based upon the undisputed location of plaintiffs’ horse pen about 100 feet from defendants’ home, in alleged violation of a local law that requires such pens to be separated from dwellings by at least 500 feet; however, a private nuisance claim requires a showing of intentional action or inaction that substantially and unreasonably interferes with other people’s use and enjoyment of their property. Since the defendants only relied on the alleged local law violation and offered no proof that the horse pen’s placement caused a substantial or unreasonable interference, they did not prove entitlement to summary judgment on the per se nuisance claim.

Overocker v. Madigan, 516957, 2014 WL 66872 (N.Y.A. D. 3d Dept. 1/9/2014)

The opinion can be accessed at:

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