Posted by: Patricia Salkin | April 7, 2019

NY City Court Allows Private Nuisance Claim Based on Neighbor’s Unfounded Complaints about Dog Barking

This post was authored by Amy Lavine, Esq.

An interesting lower court case from New York was issued in April on the subject of nuisances. The plaintiff in the action claimed that the incessant barking of her neighbors’ dogs interfered with her right to quiet use and enjoyment of her property. The issue before the court, however, was the validity of a counterclaim filed by the neighboring dog owners. They claimed that it was actually the plaintiff who was liable for creating a nuisance, which was accomplished through her frivolous and unfounded complaints to the authorities about the alleged dog barking.

While the neighbors’ counterclaim was stated in the classic language of a nuisance claim, it was questionable whether they met the necessary elements for establishing a private nuisance. As the court explained: “A classic nuisance complaint alleges that an unpleasant noise, odor or sight generated from a nearby tract of land renders the plaintiff’s occupation and enjoyment of their home physically uncomfortable. Here, the alleged blight is the intrusion of a bureaucratic horde to investigate the Powers’ compliance with municipal regulations—a markedly unusual claim.” The elements of a nuisance, the court further explained, have historically required proof of some offensive use of property itself, rather than some action or inaction only indirectly connected with the property alleged to be a nuisance. Nevertheless, the court noted, “private nuisance is a common law claim and the fantastic beauty of the common law is that it allows a court to shape, extend, narrow or adapt the law to the context of a controversy between parties. So, the question becomes whether the court should venture into new grounds.”

While the court was not aware of any New York caselaw that expanded nuisance claims beyond traditionally offensive uses of property, it noted several cases from other states that considered nuisances arising from other circumstances. In Brillhardt v. Ben Tipp, Inc., 48 Wash 2d 722 (Wash 1956), for example, a nuisance was found where the plaintiff was plagued by frequent calls for a company that had accidentally printed the plaintiff’s phone number on its sales slips, rather than its own. The nuisance of the repeated calls, the court noted, was caused by the people calling the plaintiff’s number, not by any direct action of the defendant. An Oregon court found a nuisance in a similar case, Macca v. Gen. Tel. Co. of Nw., 262 Or 414 (Or. 1972), where the plaintiff’s phone number was incorrectly listed as the number for a floral shop in the phonebook. On the other hand, an Illinois case held that a nuisance claim required a physical invasion of the plaintiffs’ property and on this basis refused to find a nuisance arising from their neighbors’ repeated complaints to the police and other enforcement agencies about their violations of noise and other municipal ordinances. Schiller v. Mitchell, 357 Ill App3d 435 (Ill App Ct 2005).

Reflecting on these cases, the court suggested that the best approach was to focus on the origins of the law of nuisances and the purposes to be served by such complaints. “The common law’s protection against unpleasant sounds, smells and sights were to allow owners peace and repose in their homes,” the court explained. It analogized the odors and noise caused by industrialization to the later proliferation in telephone lines that resulted in the intrusions onto the use of property found in the Oregon and Washington cases. The court then disagreed with the holding of the Illinois case and continued its analogy, finding that today, “the administrative state has mushroomed and with it, a swarm of regulations. These regulations allow neighbors to sic municipal bureaucrats on each other…. Such repeated intrusions, when they are unjustified because of a neighbor’s specious claims, violated the homeowners’ right to the quiet enjoyment of their home— and correspondingly, give rise to a private cause of action for nuisance.” The court also noted that the defendants’ counterclaim in this case was “directly connected to their ability to continue the use and enjoyment of their property” in that the plaintiff sought to have them evicted or removed from their property with each of her complaints to authorities. This was a sufficient connection to the use of the property, the court found, to properly allege a private nuisance.

In closing, the court noted that the neighbors’ counterclaim sufficed to plead a valid cause of action, but it was as yet lacking in relevant details that would be necessary to survive on summary judgment or to prevail at trial. “The question of nuisance,” the court explained, “will turn on the number of complaints, the frequency of the complaints, the redundancy of complaints, and the legitimacy of complaints.”

Allen v Powers, 2019 NY Slip Op 29104 (City Court Of Cohoes, Albany County 4/1/2019).


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