Copart Industries, Inc. v. Consolidated Edison Co. of New York, Inc.

• Decision Date: 13 May 1976
• Citation: 383 N.Y.S.2d 201,52 A.D.2d 791
• Parties: COPART IINDUSTRIES, INC., Plaintiff-Appellant, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 201

383 N.Y.S.2d 201

52 A.D.2d 791

COPART IINDUSTRIES, INC., Plaintiff-Appellant, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

May 13, 1976.

J. Calderon, New York City, for plaintiff-appellant.

J. J. Klem, New York City, for defendant-respondent.

Before MARKEWICH, J.P., and KUPFERMAN, SILVERMAN, LANE and NUNEZ, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County, entered November 13, 1974, in favor of the defendant Consolidated Edison Company of New York, Inc., after a jury trial, affirmed. Respondent shall recover of appellant $60 costs and disbursements of this appeal.

The plaintiff corporation leased space in a portion of the Brooklyn Navy Yard. It used the leased facilities for the storage and preparation of new cars. Noxious emissions from smokestacks of the defendant, located nearby, allegedly caused damage to the exteriors of the automobiles being serviced by Copart, compelling it to cease to do business at that location.

Copart instituted suit alleging, Inter alia, a cause of action for nuisance as a result of 'the deliberate and willful violation of the rights of (Copart)' and for trespass.

The court instructed the jury on the law of nuisance and contributory negligence. Exception was taken to that instruction. The jury found in favor of Consolidated Edison and Copart urges that the court's instructions were error warranting reversal and remand for a new trial. We would affirm.

The source of the pollutant resulting in damage to the cars serviced by Copart was the subject of conflicting expert testimony, plaintiff's expert claiming Consolidated Edison to be the culprit, and Consolidated Edison claiming other fuel burners in the Brooklyn Navy Yard as possible culprits. The plaintiff's expert also testified that while the plant in question had once used a combined mechanical-electrostatic precipitator, it ceased using it some time before this cause of action arose. He further testified as to the normal custom in the trade regarding the use of such mechanisms. Consolidated Edison advanced expert testimony on its behalf. Clearly an issue in the case was the proper running of the Consolidated Edison plant, based on the available antipollution technology.

In order for use of property to constitute a nuisance, it 'must be such as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment specially uncomfortable or inconvenient' (Campbell v. Seaman, 63 N.Y. 568, 577). Furthermore, we agree with our dissenting brothers that the primary meaning of nuisance does not involve the element of negligence as one of its essential factors (Heeg v. Licht, 80 N.Y. 579).

However, in contemplation of law, nuisance is a concept susceptible of more than one meaning. While an absolute nuisance need not contain within its definition a flavoring of negligence, a qualified nuisance may (42 N.Y.Jur., Nuisances § 9, page 453).

Moreover, we cannot rely solely on the labeling of a cause of action in a complaint to determine whether its origin is in negligence or absolute nuisance, since it would be an intolerable situation to allow the choice of name, often left to the predilection of the drafter of the complaint, to condition the liability of a defendant (McFarlane v. City of Niagara Falls, 247 N.Y. 340, 345, 160 N.E. 391, 392).

In the case at bar, the testimony, especially that of the experts, as developed at trial, showed an inextricable intertwining of negligence with the nuisance claimed, though the complaint did not so frame the issue. We find that the proof portrayed the alleged wrong as 'a 'nuisance,' though...