This was originally posted on the SGR Blog.
Did General Allegations of Traffic and Noise State a Claim for Private Nuisance?
Zoning and other rules and regulation in residential neighborhoods often prohibit, limit, or restrict commercial activities that generate traffic and noise. But, as a recent case illustrates, the Court may have to determine whether the conduct of which complaint is made crosses the line into a private nuisance.
Gina Rice, Ira Zimmerman, and Nicole Page sued William Bourne, Paul G. Pennoyer, Gerald L. Eastman, and Lisa M. Eastman to recover damages suffered from the alleged illegal operation of a business on property adjacent to their home, and asserted causes of action for nuisance, negligent infliction of emotional distress, and punitive damages.
The three homeowners alleged that they were the owners and residents of 4 Matinecock Farms Road, Glen Cove, New York. Pennoyer was the owner of 16 Underhill Road. The Eastman’s were the owners of 18 Underhill Road. Bourne was a tenant living at 18 Underhill Road, and was conducting a commercial business at both 16 and 18 Underhill Road.
The Rice/Zimmerman/Page property is immediately adjacent to both 16 and 18 Underhill Road. All of the properties are located in a residential zoning district pursuant to the Glen Cove City Zoning Code, which prohibits the operation of a commercial business in that residential zone.
Bourne’s operation of his business at 16 and 18 Underhill Road allegedly created a nuisance that was operated at all hours of the day and night, seven (7) days a week. The operation of the illegal business and the conduct of Bourne and his employees in operating said business negligently inflicted emotional distress—and, as a result of Bourne’s actions, the homeowners suffered the loss, use, and enjoyment of their property and the value of their homes was diminished.
Bourne asserted that the suit was filed in bad faith and the allegations against him were false. He denied running a business at 16 and 18 Underhill Road and stated that he only parked his work truck there. Bourne asserted that Rice/Zimmerman/Page were harassing him, and had previously made baseless complaints to the police and made verbal threats to have him thrown off the property.
Bourne argued that the complaint failed to specify how he had created a nuisance. He stated that, even assuming he was running a business (which he denied), Rice/Zimmerman/Page failed to state how the alleged running of a business interfered with their enjoyment of their property or harmed them. Bourne further stated that there was not a single allegation or fact that supported any claim that his actions had caused the value of their property to diminish.
In regard to the negligent infliction of emotional distress claim, Bourne argued that the complaint failed to allege that the homeowner’s physical safety was endangered and thus failed to state an actionable claim.
Bourne moved to dismiss the complaint. The test applied by the Court was whether the complaint gave sufficient notice of the transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to law could be discerned from the factual averments.
In opposition to Bourne’s motion, Rice/Zimmerman/Page submitted the affidavit of Ira Zimmerman. In his affidavit, Zimmerman repeated the allegations of the complaint and asserted more factually detailed statements regarding the alleged business operations of Bourne at 16 and 18 Underhill Road. Zimmerman asserted that the business included the use of commercial vehicles and heavy duty commercial equipment including wood chippers and wood splitters on a daily basis, at all hours of the day and night. He stated further that there was commercial traffic and extremely loud and often unbearable noises, and that trucks rolled in and out of the property transporting large trees, firewood and chips.
The first cause of action alleged both nuisance and negligent infliction of emotional distress against Bourne. The second cause of action appeared to further address the nuisance cause of action. The Court reviewed the complaint in order to ascertain whether Rice/Zimmerman/Page possessed a cognizable claim.
A claim of negligent infliction of emotional distress must be premised upon a breach of duty owed directly to the plaintiff which either endangered the plaintiff’s physical safety or caused the plaintiff to fear for his or her own physical safety.
The complaint was devoid of any alleged duty owed by Bourne to Rice/Zimmerman/Page. Nor did it allege any threat to their physical safety or that they feared for their physical safety. While Zimmerman submitted his affidavit adding details to the claims, nothing was added regarding the claim of negligent infliction of emotional distress.
Accordingly, to the extent that the first cause of action stated a claim for negligent infliction of emotional distress against Bourne, such claim was dismissed.
The Court then turned to the nuisance claim asserted against Bourne. The elements of a private nuisance cause of action are an interference substantial in nature; intentional in origin; unreasonable in character; with a person’s property right to use and enjoy land; caused by another’s conduct in acting or failure to act. Except for the issue of whether the plaintiff has the requisite property interest, each of the other elements is a question for the jury, unless the evidence is undisputed.
The Court found that the allegations of the complaint and the Zimmerman affidavit, taken together, were sufficient to show that they possessed a cognizable claim for private nuisance. Such a claim, predicated upon allegations of excessive noise emanating from neighbor’s properties, was sufficient.
The nuisance claim was also properly based upon the alleged continuing violation of City of Glen Cove zoning ordinances by the operation of a commercial business upon residential property, which adversely affected the adjacent properties. Also, the obligation of City of Glen Cove officials to enforce such ordinances did not prevent the contiguous property owners from maintaining an action against their neighbor to obtain damages to vindicate a separate legal interest of their own.
But Bourne denied the allegations that he was running a business on the property or creating excessive noise, and argued that, in light of the failure to offer any proof of either the operation of any business or the claimed excessive noises, the nuisance claims against him must be dismissed. However, at the pleading stage, Rice/Zimmerman/Page were not required to prove their allegations.
Accordingly, the Court deemed the allegations of the first and second causes of action to constituted claims sounding in private nuisance and, to that extent, those claims were sustained as a matter of pleading.
The seventh cause of action stated Bourne and others had taken “punitive actions” and as a result Rice/Zimmerman/Page suffered from negligent infliction of emotional distress and further diminished value in their real property, arguing that, as a result of the foregoing, they were entitled to punitive damages.
To the extent that the seventh cause of action asserted a claim for negligent infliction of emotional distress against Bourne, such claim was dismissed. To the extent that the seventh cause of action stated a claim for private nuisance, the claim was dismissed as duplicative of the nuisance claim already recognized by the Court.
New York does not recognize an independent cause of action for punitive damages. Accordingly, to the extent the seventh cause of action asserted a claim for punitive damages, the claim was dismissed.