Balunas v. Owego, 504755
| Decision Date | 26 November 2008 |
| Docket Number | 504755 |
| Parties | EDWARD W. BALUNAS et al., Respondents, v. TOWN OF OWEGO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from that part of an order of the Supreme Court (Tait, J.), entered December 26, 2007 in Tioga County, which partially denied defendant's motion to dismiss the complaint.
Plaintiffs commenced this action seeking damages and a permanent injunction prohibiting defendant from constructing a water tank—35 feet in diameter and 30 feet high—on a parcel of land that abuts their property. Specifically, plaintiffs alleged that defendant violated the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]), that defendant's construction of the tank would constitute an unlawful taking, and the tank would be a public and private nuisance. Plaintiffs also moved, by order to show cause, for a preliminary injunction prohibiting defendant from continuing the construction of the tank. Defendant then moved to dismiss the complaint. Supreme Court denied plaintiffs' motion for a preliminary injunction and partially granted defendant's motion, dismissing the first three causes of action. Defendant now appeals from that part of the order denying its motion with respect to plaintiffs' fourth cause of action, which alleged a private nuisance.
As is relevant here, a private nuisance is an intentional interference with a person's right to use and enjoy his or her property that is "substantial in nature" and "unreasonable in character" (Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570 [1977]; see LaJoy v Luck Bros., Inc., 34 AD3d 1015, 1016 [2006]; Dugway, Ltd. v Fizzinoglia, 166 AD2d 836, 837 [1990]). Plaintiffs alleged in their complaint that the water tank will substantially interfere with the use and enjoyment of their property because it will be located approximately 60 feet from their property line and will be "clearly visible from all parts of their backyard and home." However, "`things [that are] merely disagreeable, which simply displease the eye . . . no matter how irritating or unpleasant, are not nuisances'" (Dugway, Ltd. v Fizzinoglia, 166 AD2d at 837, quoting 81 NY Jur 2d, Nuisances § 17, at 333). As such, plaintiffs' allegation that the water tower will be visible from their home is insufficient to raise an inference of a substantial interference, even reasonably inferring from plaintiffs' allegations that the tower will be unsightly (see Dugway, Ltd. v Fizzinoglia, supra). Nor is plaintiffs' allegation that their home would be damaged in the event of a...
To continue reading
Request your trial
-
In re Mission Constr. Litig., 10 Civ. 4262 (LTS)(HBP)
...564, 568, 362 N.E.2d 968, 971, 394 N.Y.S.2d 169, 172 (1977) (internal citations omitted); accord Balunas v. Town of Owego, 56 A.D.3d 1097, 1098, 867 N.Y.S.2d 788,789 (3d Dep't 2008) ("[A] private nuisance is an intentional interference with a person's right to use and enjoy his or her prope......
-
WIR Assocs., LLC v. Town of Mamakating, 524931
...evidence" and fails ( Maas v. Cornell Univ. , 94 N.Y.2d at 91, 699 N.Y.S.2d 716, 721 N.E.2d 966 ; see Balunas v. Town of Owego , 56 A.D.3d 1097, 1098, 867 N.Y.S.2d 788 [2008], lv denied 12 N.Y.3d 703, 876 N.Y.S.2d 704, 904 N.E.2d 841 [2009] ). As for the SEQRA determination itself, the Town......
-
Mesiti v. Mongiello
...consideration ( see Maas v. Cornell Univ., 94 N.Y.2d 87, 91, 699 N.Y.S.2d 716, 721 N.E.2d 966 [1999]; Balunas v. Town of Owego, 56 A.D.3d 1097, 1098, 867 N.Y.S.2d 788 [2008], lv. denied 12 N.Y.3d 703, 876 N.Y.S.2d 704, 904 N.E.2d 841 [2009]; Quail Ridge Assoc. v. Chemical Bank, 162 A.D.2d a......
-
Nemeth v. K–Tooling
...Indus. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 570, 394 N.Y.S.2d 169, 362 N.E.2d 968 [1977];see Balunas v. Town of Owego, 56 A.D.3d 1097, 1098, 867 N.Y.S.2d 788 [2008],lv. denied12 N.Y.3d 703, 876 N.Y.S.2d 704, 904 N.E.2d 841 [2009];Chenango, Inc. v. County of Chenango, 256 A.D.2......