Duffy v. Baldwin, 528350

• Court: New York Supreme Court Appellate Division
• Writing for the Court: Reynolds Fitzgerald, J.
• Citation: 183 A.D.3d 1053,124 N.Y.S.3d 110
• Parties: Christine DUFFY et al., Appellants, v. Kellie BALDWIN et al., Respondents.
• Docket Number: 528350
• Decision Date: 14 May 2020

183 A.D.3d 1053
124 N.Y.S.3d 110

Christine DUFFY et al., Appellants,
v.
Kellie BALDWIN et al., Respondents.

528350

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: March 26, 2020
Decided and Entered: May 14, 2020

124 N.Y.S.3d 112

William J. Better, PC, Kinderhook (Joseph D. Clyne of counsel), for appellants.

Wellner and Associates PLLC, Hillsdale (Phillip A. Wellner of counsel), for respondents.

Before: Garry, P.J., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from an order of the Supreme Court (Melkonian, J.), entered November 1, 2018 in Albany County, which granted defendants' motion to dismiss the complaint.

Plaintiffs and defendants owned adjoining parcels of property in the Town of Guilderland, Albany County. In 2015, defendants excavated the front 20 feet of their front lawn, paved it and constructed a brick retaining wall, creating a parking area for three to four vehicles. Thereafter, defendants parked vehicles in this area, as well as their driveway. Plaintiffs contend that this created a safety hazard, as their line of sight was significantly blocked when they exited their driveway onto the street and into traffic. In 2018, plaintiffs commenced this action alleging causes of action in public and private nuisance, as well as seeking a permanent injunction. Defendants filed a pre-answer motion to dismiss the complaint for failure to state a cause of action (see CPLR 3211[a][7] ). Supreme Court granted defendants' motion and dismissed the complaint, finding that plaintiffs' allegations were wholly speculative. Plaintiffs appeal.

At the outset it must be noted that, approximately two months after the notice of appeal was filed, defendants transferred their property to a third party. Defendants contend that this transfer renders the appeal moot. We disagree. Plaintiffs are seeking damages for both psychological injury and reduction in the fair market value of their home as a result of the alleged nuisance created by defendants. As such, defendants' sale of the property may limit the damages available to plaintiffs, but it does not mandate dismissal of the complaint (see CPLR 1018 ;

124 N.Y.S.3d 113

Schillaci v. Sarris, 122 A.D.3d 1085, 1088, 997 N.Y.S.2d 504 [2014] ). However, as to the request for a permanent injunction, as plaintiffs' acknowledge, the injunctive relief can no longer be obtained from defendants as there are no continuing actions by defendants. As such, this claim is moot.

"When assessing a pre-answer motion for failure to state a cause of action, we accept allegations in the complaint as true and accord the plaintiff[s] every favorable inference" ( Mid–Hudson Val. Fed. Credit Union v. Quartararo & Lois PLLC, 155 A.D.3d 1218, 1219, 64 N.Y.S.3d 389 [2017] [citations omitted], affd 31 N.Y.3d 1090, 78 N.Y.S.3d 703, 103 N.E.3d 774 [2018] ; see Davis v. Boeheim, 24 N.Y.3d 262, 268, 998 N.Y.S.2d 131, 22 N.E.3d 999 [2014] ; Radiation Oncology Servs. of Cent. N. Y., P.C. v. Our Lady of Lourdes Mem. Hosp., Inc., 148 A.D.3d 1418, 1419, 49 N.Y.S.3d 792 [2017] ). Plaintiffs initially argue that Supreme Court erred in dismissing their cause of action for private nuisance. "A private nuisance claim may be established by proof of intentional action or inaction that substantially and unreasonably interferes with other people's use and enjoyment of their property" ( DelVecchio v. Collins, 178 A.D.3d 1336, 1336, 116 N.Y.S.3d 414 [2019] [internal quotation marks, brackets and citations omitted] ).

Plaintiffs' complaint...