Chenango Inc. v. County of Chenango

• Decision Date: 10 December 1998
• Citation: 681 N.Y.S.2d 640,256 A.D.2d 793
• Parties: 1998 N.Y. Slip Op. 11,003 CHENANGO INC., Appellant, v. COUNTY OF CHENANGO et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 640

681 N.Y.S.2d 640

1998 N.Y. Slip Op. 11,003

CHENANGO INC., Appellant, v. COUNTY OF CHENANGO et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

Dec. 10, 1998.

Menter, Rudin & Trivelpiece (Julian B. Modesti of counsel), Syracuse, for appellant.

Chernin & Gold (Sanford P. Tanenhaus of counsel), Binghamton, for respondents.

Before: MIKOLL, J.P., MERCURE, CREW, PETERS and CARPINELLO, JJ.

MIKOLL, Justice Presiding.

Appeal from an order of the Supreme Court (Ingraham, J.), entered March 23, 1998 in Chenango County, which granted defendants' motion for summary judgment dismissing the complaint.

The question presented is whether Supreme Court improperly dismissed plaintiff's causes of action for nuisance and negligence based upon defendants' construction and operation of a landfill upon property adjoining that of plaintiff.

In 1983, plaintiff purchased approximately 105 wooded acres, containing a small cabin, in the Town of Pharsalia, Chenango County. The property served as an outdoor recreation area and nature and game preserve for plaintiff's shareholders and clients, and was utilized as such between 12 and 25 times per year. In 1992, defendant County of Chenango purchased adjoining land for the purpose of constructing a new landfill. Plaintiff commenced this action alleging, inter alia, that the County's construction and operation of the landfill precipitated odors, noise and vibrations adversely affecting its use and enjoyment of its property. Following discovery, defendants moved for summary judgment. Supreme Court granted the motion and dismissed the complaint, finding that plaintiff failed to establish any triable issue of fact with respect to culpable conduct on the part of defendants. Plaintiff appeals.

We affirm. While plaintiff correctly observes that summary judgment is a drastic remedy not to be granted when there is any doubt as to the existence of a triable issue of fact, it is nonetheless appropriate where the moving party's submissions establish its entitlement thereto as a matter of law and the opposing party fails to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact" (Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 967, 525 N.Y.S.2d 793, 520 N.E.2d 512).

We note at the outset that although plaintiff has set forth separate causes of action for nuisance and negligence, the complaint is essentially grounded in allegations of negligence. The essential elements of a nuisance action are "(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act" (Copart 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; see, Futerfas v. Shultis, 209 A.D.2d 761, 618 N.Y.S.2d 127; Langan v. Bellinger, 203 A.D.2d 857, 611 N.Y.S.2d 59). Conduct which is either reckless or negligent in character may form the basis of a nuisance claim, but "whether characterized as either negligence or nuisance, [it] is but a single wrong", and negligence must be proven (Copart Indus. v. Consolidated Edison Co. of N.Y., supra, at 569, 394 N.Y.S.2d 169, 362 N.E.2d 968).

Turning to an examination of the summary judgment motion, we agree with Supreme Court that defendants submitted sufficient evidence to demonstrate its exercise of reasonable care in the location, construction and operation of the landfill. Pursuant to a mandate from the Department of Environmental Conservation (hereinafter DEC) directing closure of its existing landfills, the County was required to construct a new "state of the art" municipal landfill. It engaged environmental engineers who undertook a study of 20 potential sites in accordance with DEC criteria. Under the direction of DEC, the County prepared a full environmental impact statement in accordance with the State Environmental Quality Review Act (ECL art 8). The operating permit granted to the County by DEC required that construction and operation of the landfill comport with the regulations of 6 NYCRR part 360 as well as the enumerated conditions of the permit itself. Regular monitoring and testing conducted by DEC have revealed no regulatory violations or adverse effects upon water quality or the environment. Notably, DEC and the Army Corps of...