Falzon v. Ford

• Decision Date: 06 January 2021
• Docket Number: EF002928-2020
• Citation: 141 N.Y.S.3d 255,70 Misc.3d 1121
• Parties: John FALZON, Cindy Falzon, Joseph VoelpeL, and Dianna Voelpel, Plaintiffs, v. Brian FORD, Stephanie Ford, Sunstarter Solar XXXIV LLC, and Solar Provider Group LLC, Defendants.
• Court: New York City Court

70 Misc.3d 1121

141 N.Y.S.3d 255

John FALZON, Cindy Falzon, Joseph VoelpeL, and Dianna Voelpel, Plaintiffs, v. Brian FORD, Stephanie Ford, Sunstarter Solar XXXIV LLC, and Solar Provider Group LLC, Defendants.

EF002928-2020

Supreme Court, Orange County, New York. City Court, City of Cohoes, New York.

Decided January 6, 2021

Brian H. Brick, Esq., Brick Law PLLC, White Plains, NY, for Plaintiff.

Kelly Ann Pressler, Esq., Jacobowitz & Gubits, LLP, Walden, NY, for Moving Defendants.

Catherine M. Bartlett, J.

It is ORDERED that the motion is disposed of as follows:

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Solar Panel Farm Project

Plaintiffs John and Cindy Falzon and plaintiffs Joseph and Dianna Voelpel are homeowners and next-door neighbors in Minisink, New York. Defendants Brian Ford and Stephanie Ford own eighty-five acres of land directly behind the Falzon and Voelpel properties.

The Fords leased seven of their 85 acres to defendants Sunstarter Solar XXXIV LLC and Solar Provider Group LLC (collectively, the "Solar Defendants") for the construction and long term operation of a "solar panel farm" behind Plaintiffs' homes, approximately fifty (50) feet from their rear property lines. The planned solar panel project was presented to the Minisink Planning Board for review. The Solar Defendants commissioned a visual impact study as part of their application for Planning Board approval to address Plaintiffs' opposition to the project. Plaintiffs allege that (1) the study methodology called for the use of both 24 mm and 50 mm lens photographs; (2) the Solar Defendants took both 24 mm and 50 mm lens photographs, but submitted only the 24 mm photographs without properly notifying Plaintiffs or Minisink officials of the change in methodology; (3) they did so to skew the true visual impact of the project, as the 24 mm lens photograph is a wide-angle image that makes objects seem farther away and less invasive; and (4) the Planning Board members were "visibly surprised and were displeased with [the Solar Defendants'] omission and withholding of the 50 mm lens photographs."

B. Plaintiffs' Complaint and the Solar Defendants' Prior Motion to Dismiss

The Plaintiffs' Complaint asserted three causes of action against the Solar Defendants: (1) intentional misrepresentation; (2) negligence; and (3) private nuisance. The Plaintiffs sought compensatory damages and a permanent injunction against the solar panel project. The Solar Defendants moved pursuant to CPLR § 3211(a)(7) to dismiss the Complaint for failure to state a valid cause of action.

By prior Decision and Order dated October 8, 2020, this Court dismissed the cause of action for intentional misrepresentation, writing:

"[A] cause of action for fraud or intentional misrepresentation requires proof 'that the defendant knowingly misrepresented a material fact upon which the plaintiff justifiably relied, causing the plaintiff's damages." Kazmark v. Wasyln, 167 A.D.3d 1386, 1387 (3d Dept. 2018). In Berenger v. 261 West LLC, 93 A.D.3d 175 (1st Dept. 2012), the plaintiffs alleged claims for fraud and misrepresentation predicated on alleged omissions in a condominium offering plan as to the location and operation of a cooling tower. The Court dismissed those claims, writing:

Here, it is undisputed that the plaintiffs purchased the unit having previously seen the cooling tower. Thus, the plaintiffs cannot claim to have relied on any failure to depict the cooling tower in the offering plan or architectural plans when they decided to purchase the unit.

Berenger, supra, 93 A.D.3d at 184 . Here, similarly, inasmuch as both the Plaintiffs and the members of the Minisink Planning Board were fully aware of the Solar Defendants' omission of the 50 mm lens photographs from the visual impact study, Plaintiffs cannot plead justifiable reliance upon any misrepresentation by the Solar Defendants in this regard. Moreover, there is no allegation that the Minisink Planning Board has granted approval for the solar panel project based on the allegedly flawed visual impact study. For each of these reasons, the Complaint fails to state a valid cause of action for intentional misrepresentation. Consequently, the First Cause of Action in the Complaint is dismissed.

(Decision and Order dated October 8, 2020)

The Court also dismissed Plaintiffs' claim for common law negligence, writing:

It is hornbook law that the elements of a cause of action for common law negligence are (1) the existence of a duty of care on the part of the defendant running to the plaintiff, (2) a negligent breach of that duty, and (3) damages flowing from the breach. The Complaint against the Solar Defendants pleads none of the elements of common law negligence.

"The threshold question in any negligence action is: does defendant owe a legally recognized duty of care to plaintiff?" Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232 [727 N.Y.S.2d 7, 750 N.E.2d 1055] (2001). "Without a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm." Id. (quoting Lauer v. City of New York, 95 N.Y.2d 95, 100 [711 N.Y.S.2d 112, 733 N.E.2d 184 (2000)] ). Whether any duty exists is, in the first instance, a legal question for the courts to determine. See,Powers ex rel. Powers v. 31 E. 31 LLC, 24 N.Y.3d 84, 94 [996 N.Y.S.2d 210, 20 N.E.3d 990] (2014) ; Darby v. Compagnie National Air France, 96 N.Y.2d 343, 347 [728 N.Y.S.2d 731, 753 N.E.2d 160] (2001) ; Waters v. New York City Housing Authority, 69 N.Y.2d 225, 229 [513 N.Y.S.2d 356, 505 N.E.2d 922] (1987).

Under New York law, the approval vel non of site plan applications is within the purview of municipal planning boards, subject to administrative appeal and ultimately to judicial review under Article 78 of the Civil Practice Law and Rules. Property owners who by reason of their proximity to proposed land use projects would thereby suffer actual harm differing from that suffered by the public at large — including harm resulting from the visual impact of the project — have standing to challenge the planning board's determina- tions by means of an Article 78 proceeding. See,Schlemme v. Planning Board of City of Poughkeepsie, 118 A.D.3d 893, 894-895 (2d Dept. 2014) ; Cady v. Town of Germantown Planning Board, 184 A.D.3d 983, 985-986 (3d Dept. 2020) ; Cady [Cade] v. Stapf, 91 A.D.3d 1229, 1230-31 (3d Dept. 2012). So far as this Court can determine, however, New York law does not countenance a parallel scheme whereby aggrieved property owners may also hale site plan applicants into court on common law claims that they breached some amorphous duty of care in presenting their applications to the municipal planning board. Property owners' rights and remedies in this area are governed instead by well established Article 78 jurisprudence.

Thus, Plaintiffs have not demonstrated the existence of any duty of care owed by the Solar Defendants to the Plaintiff homeowners in connection with the said Defendants' application to the Minisink Planning Board. In any event, Plaintiffs do not allege any negligence on the Solar Defendants' part, but rather an intentional misrepresentation in connection with the visual impact study; and as the Minisink Planning Board has not granted approval for the solar panel project based on the allegedly flawed visual impact study, the Complaint alleges no damage flowing from the putative breach. For each of these reasons, the Complaint fails to state a valid cause of action for common law negligence. Consequently, the Second Cause of Action in the Complaint is dismissed.

(Decision and Order dated October 8, 2020)

However, the Court denied the motion for dismissal of Plaintiffs' cause of action for private nuisance. The Court wrote:

The elements of a cause of action for private nuisance 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 Industries, Inc. v. Consolidated Edison Co. of New York, Inc., 41 N.Y.2d 564, 570 [394 N.Y.S.2d 169, 362 N.E.2d 968] (1977) ; Taggart v. Costabile, 131 A.D.3d 243, 247 (2d Dept. 2015).

The Solar Defendants claim that Plaintiffs' complaint fails to state a cause of action for private nuisance because (1) there is no present interference with Plaintiffs' property right to use and enjoy land, but only a planned future project still awaiting Planning Board approval; and (2) the proposed project is authorized by the Town code and hence not unreasonable in character. New York law, however, is to the contrary.

1. A Court In Equity May Enjoin A Threatened Prospective Nuisance

In Sweet v. Campbell, 282 N.Y. 146, 25 N.E.2d 963 (1940), plaintiffs brought an action in equity to restrain the use by defendants of certain premises for a funeral church and undertaking establishment. The complaint was dismissed without prejudice to the institution of a new action after the completion of the structure and the commencement of its use for undertaking / funeral purposes. The Court of Appeals reversed, holding:

We need not now consider the subject of nuisance by way of definition and determine whether the proposed use would constitute a private nuisance [cit.om.], or whether the occupation and use of the property would amount to a nuisance under any circumstances regardless of location and surroundings. [cit.om.] It is sufficient, at least, at this time to point out that the facts set up in the complaint, if established by competent and adequate proof upon a trial of the action, would furnish the foundation upon which a finding, if made, might be sustained, to the effect that the proposed occupation and use of the premises by defendants are unwarranted and unreasonable and constitute an actionable injury to the plaintiffs and a detriment to their properties. The complaint,

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