Posted by: Patricia Salkin | February 20, 2020

NY Appellate Court Holds Landowner Properly Pleaded Claim for Private Nuisance

This post was authored by Matthew Loescher, Esq.

 

Plaintiff and defendant were neighboring landowners in the Town of Shandaken, Ulster County. In 2000, plaintiff commenced construction on his home, which was completed in 2003. In 2001, defendant was granted site plan approval and issued a use variance to operate a stone and landscaping supply business, the Jeff Collins Stone & Landscaping Supply, on his approximately three-acre property. Plaintiff alleges that in 2005, defendant expanded the operations of Collins Stone, which caused excessive dust and noise that has impacted his use and enjoyment of his property. The Supreme Court denied defendant’s motion for summary judgement and Defendant appealed.

 

On appeal, defendant argued that Supreme Court erred in failing to dismiss the first cause of action because it does not state a cause of action for private nuisance. In the complaint, plaintiff claimed that defendant intentionally expanded the operations of Collins Stone, which has resulted in an increase in the amount of dust and noise created by the operation. Plaintiff further alleged that this impacted his use and enjoyment of his property because he has to keep his windows closed to reduce the amount of noise and dust that enters his home, and it has limited the amount of time that he can spend outside. As a result, plaintiff contended that his property value had substantially decreased and he had increased property maintenance costs. Finding all reasonable inferences in favor of plaintiff, the court found the factual allegations made by plaintiff stated a cause of action for private nuisance. However, as plaintiff did not allege that defendant acted with malice in creating the nuisance, the claim for punitive damages was denied.

 

Next, defendant argued that Supreme Court erred in denying his motion for summary judgment because he had not violated any zoning laws. Here, the variance was issued without restriction as to the size of the business. Although the business must comply with the plot plan submitted to the Planning Board, the plan did not clearly illustrate the size of defendant’s operation. Accordingly, the court found there was a material question of fact as to whether the plot plan created a size restriction as to defendant’s business. Thus, the Supreme Court properly denied defendant’s motion for summary judgment.

 

DelVecchio v. Collins, 178 A.D.3d 1336 (3 Dept 2019)

 


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