Langan v. Bellinger

• Decision Date: 28 April 1994
• Citation: Langan v. Bellinger, 611 N.Y.S.2d 59, 203 A.D.2d 857 (N.Y. App. Div. 1994)
• Parties: Julie LANGAN et al., Appellants, v. Shirley BELLINGER, as Treasurer of the Presbyterian Church of the Town of Schoharie, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 59

611 N.Y.S.2d 59

203 A.D.2d 857

Julie LANGAN et al., Appellants, v. Shirley BELLINGER, as Treasurer of the Presbyterian Church of the Town of Schoharie, Respondent.

Supreme Court, Appellate Division Third Department.

April 28, 1994.

Tabner, Laudato & Ryan (William F. Ryan Jr., of counsel), Albany, for appellants.

Bellcourt & Bartlett (George Bartlett III, of counsel), Cobleskill, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, WEISS and PETERS, JJ.

WEISS, Justice.

Appeal from an order of the Supreme Court (Hughes, J.), entered May 21, 1993 in Schoharie County, which, inter alia, granted defendant's cross motion for summary judgment dismissing the complaint.

This lawsuit demonstrates that what may be music to the ears of some can, in certain circumstances, be a nuisance to the ears of others. Plaintiffs, who reside in the Village of Schoharie, Schoharie County, have commenced this action against their neighbor, the Presbyterian Church of the Town of Schoharie, seeking injunctive relief "from playing hourly chimes on a daily basis beginning at 8:00 o'clock in the forenoon and ending at 8:00 o'clock in the afternoon * * * and from playing carillon music on a daily basis at 12:00 o'clock in the afternoon and at 6:00 o'clock in the afternoon", which plaintiff Julie Langan ¹ avers "is a complete disruption of [her] family life, prevents a child from sleeping, and invades the privacy of [her] residence and creates unnecessary stress". The complaint characterizes the foregoing to be both a private nuisance and a violation of an ordinance of the Village of Schoharie. Plaintiffs moved by order to show cause for a preliminary injunction, in response to which defendant cross-moved for summary judgment dismissing the complaint. Supreme Court denied plaintiffs' motion, granted defendant's cross motion and dismissed the complaint. We affirm.

One may be liable for a private nuisance where the wrongful invasion of the use of another's land is intentional and unreasonable. The elements of such a 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 failing 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, Restatement of Torts, § 822). We note that the complaint appears to be defective in that it fails to allege two of the basic elements of private nuisance, i.e., that the interference is substantial in nature or that it is unreasonable in character. For this reason alone, dismissal of the complaint would be appropriate.

Nonetheless, we similarly find dismissal on the ground found by Supreme Court to be proper. Defendant's moving papers included the sworn affidavit of and report by Wayne Sikora, an expert in noise management, which showed that the sound levels emanating from the bells and chimes were no greater than the sound from a passing automobile, of which some 6,500 passed plaintiffs' properties each day. This document, together with affidavits from the pastor of the church, defense counsel and affidavits from 15 other Village residents who found the bells and chimes to be pleasant, as well as an affidavit from the Village Mayor and Village Attorney showing there was no violation of an ordinance (see, Camarda v. Vanderbilt, 147 A.D.2d 607, 608-609, 538 N.Y.S.2d 16), constituted a prima facie showing of entitlement...