Lajoy v. Luck Bros., Inc., 500551.

• Citation: 34 A.D.3d 1015,826 N.Y.S.2d 759,2006 NY Slip Op 08308
• Decision Date: 16 November 2006
• Docket Number: 500551.
• Parties: BETTY LOU LAJOY, Individually and as Trustee of the W.H. LAJOY IRREVOCABLE TRUST, Respondent, v. LUCK BROS., INC., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

34 A.D.3d 1015

826 N.Y.S.2d 759

2006 NY Slip Op 08308

BETTY LOU LAJOY, Individually and as Trustee of the W.H. LAJOY IRREVOCABLE TRUST, Respondent, v. LUCK BROS., INC., et al., Appellants.

500551.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided November 16, 2006.

Appeal from an order of the Supreme Court (Dawson, J.), entered July 27, 2005 in Clinton County, which denied defendants' motion for summary judgment dismissing the complaint.

Rose, J.

Plaintiff, individually and as trustee of W.H. LaJoy Irrevocable Trust, commenced this private nuisance action to recover for personal injuries and property damage allegedly caused by the nighttime reconstruction of a highway by defendants under a contract with the Department of Transportation (hereinafter DOT). Plaintiff asserted that the equipment used by defendants in reconstructing the highway had created, among other things, excessive noise and vibrations that adversely affected her health and property. On defendants' renewed motion for summary judgment, Supreme Court concluded that plaintiff raised questions of fact as to whether their selection and use of certain equipment had been a reasonable interference with plaintiff's right to use and enjoy her property, and denied the motion. Defendants now appeal.^*

The elements of a private nuisance cause of 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 NY2d 564, 570 [1977]; see Futerfas v Shultis, 209 AD2d 761, 763 [1994]). Focusing primarily on the third element, defendants presented evidence that the reconstruction was performed during nighttime hours because that was mandated by the DOT contract, the types of construction equipment used were necessary to meet the contract requirements in compliance with state and federal regulations, and appropriate measures to mitigate noise and vibration had been incorporated by DOT into the contract. Defendants assert that they complied with applicable DOT guidelines in performing the reconstruction and they could not have significantly reduced the noise or vibration. In their affidavits, two DOT engineers who had worked on the reconstruction project stated that the DOT contract included a noise study which considered how construction noise could be mitigated. However, they did not claim that defendants implemented those measures, or that it would not have been feasible or cost effective to do so. The engineers also opined that while an alternate compaction roller could have been used, it too would have produced objectionable noise. However, they did not address whether the...