Lichtman v. Nadler

• Decision Date: 08 April 1980
• Parties: Gary LICHTMAN and Marsha Lichtman, Appellants, v. Beverly NADLER, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 628

426 N.Y.S.2d 628

74 A.D.2d 66

Gary LICHTMAN and Marsha Lichtman, Appellants, v. Beverly NADLER, Respondent.

Supreme Court, Appellate Division, Fourth Department.

April 8, 1980.

Kavinoky, Cook, Sandler, Gardner, Wisbaum & Lipman, Buffalo (K. Michael Sawicki, East Aurora, of counsel), for appellants.

Miles, Cochrane, Grosse, Rossetti & Chelus, and Heimerl, Kenan & Stiller, Buffalo (Raymond T. Miles, III, Buffalo, of counsel), for respondent.

Before CARDAMONE, J. P., and HANCOCK, SCHNEPP, DOERR and MOULE, JJ.

HANCOCK, Justice.

Plaintiffs' appeal presents a well-defined legal issue: whether owners of residential property in an urban area have a cause of action for private nuisance based on harmful consequences to their property due to mosquitos and unpleasant odors coming from the natural accumulation of stagnant water on adjoining land. In our opinion, Special Term properly granted summary judgment and dismissed the plaintiffs' complaint invoking the established common law rule that a land owner is under no affirmative duty to remedy conditions of purely natural origin upon his land even though they are dangerous or inconvenient to his neighbors (see Prosser, Law of Torts (4th ed. 1971) § 57, p. 354; Restatement, Torts 2d § 840, subd. 1; 66 C.J.S. Nuisances § 8 (1950); Merriam v. McConnell, 31 Ill.App.2d 241, 175 N.E.2d 293). ¹ We find nothing in the case law or in the texts supporting the dissenters' view that the traditional rule has been altered or that any exception has been made in this jurisdiction as to its application in urban or suburban areas. ² Moreover, there is no evidence in the record from which it could be concluded that defendant's conduct was either negligent or intentional, a necessary predicate for the common-law action in private nuisance (see Copart Industries v. Consolidated Edison, 41 N.Y.2d 564, 394 N.Y.S.2d 169, 362 N.E.2d 968; see, e. g., Merriam v. McConnell, supra, 31 Ill.App.2d p. 245, 175 N.E.2d 293).

The dissenters find, alternatively, that the conditions on defendant's property could constitute a public nuisance "per se " by reason of Public Health Law (§ 1500, subd. 2) and that because those conditions allegedly cause "special injury" to plaintiffs' land, plaintiffs have an action in law or in equity based on private nuisance.

We do not agree that the Public Health Law may be construed so as to give rise to a cause of action for private nuisance upon the allegation that an accumulation of water on defendant's land is a breeding place for mosquitos which, by operation of the statute, constitutes a nuisance "per se". The declaration in Public Health Law (§ 1500, subd. 2) that any "accumulation of water in which mosquitos are breeding, or are likely to breed, is hereby declared to be a nuisance" is contained in Article 15, Title I of the Public Health Law, entitled "Municipal Insect Control", the purpose of which is to vest municipal authorities with power to remove or suppress breeding places for mosquitos. Title I provides that whenever "the board of health of a municipality shall determine that any accumulation of water wherein mosquito larvae breed, constitutes a nuisance or a danger or injury to life or health, the owner or owners of the premises on which the breeding place is located shall bear the expense of its suppression or removal, or so much thereof as the local board of health shall determine to be equitable" (Public Health Law, § 1501, subd. 1) (emphasis added). Section 1501 establishes procedures for the equitable apportionment between the property owner and the municipality of the cost of abating the declared breeding grounds (Public Health Law, § 1501, subds. 1, 2, 3), and also provides that if the property owner does not proceed to suppress or remove the condition the board of health may do so and charge such portion of the expense thereof to the owner as the board of health shall determine to be fair (Public Health Law, § 1501, subd. 4). It is evident that Article 15, Title I neither makes it incumbent upon the property owner to eliminate the mosquito breeding grounds nor gives the local board of health the right to do so at the owner's expense unless the board of health has first determined under subdivision one of section 1501 that the condition constitutes "a nuisance or a danger or injury to life or health."

That the declaration in subdivision two of section 1500 of the Public Health Law can be interpreted as giving private citizens a right to sue at law or in equity to compel the defendant to remove or suppress the objected-to condition when no determination of nuisance required for action by the Public Health authorities has been made is, in our view, a reading of the statute which results in an anomaly and which is inconsistent with the legislative scheme of Article 15. Such construction is to be avoided (see McKinney's Statutes, §§ 94, 97, 98, 141). Moreover, the dissenters' interpretation of section 1500 as creating a cause of action for private nuisance where none exists at common law is, to say the least, an expansive reading of the statute and contrary to the accepted rule that a statute in derogation of the common law must be strictly construed (see McKinney's Statutes, § 301; Matter of Bayswater Health Related Facility v. Karagheuzoff, 37 N.Y.2d 408, 414, 373 N.Y.S.2d 49, 52, 335 N.E.2d 282, 285).

In our opinion, the prevailing case law mandates summary judgment and dismissal of the complaint which would not, of course, be a bar to a new action based on affirmative conduct of defendant.

The order should be affirmed.

Order affirmed without costs.

CARDAMONE, J. P., and MOULE, J., concur.

SCHNEPP and DOERR, JJ., dissent and vote to reverse the order and deny the motion in the following Opinion by SCHNEPP, J.

SCHNEPP, Justice, dissenting.

The majority perpetuates an outdated and outmoded rule which insulates all landowners from liability in nuisance for conditions arising from natural causes. We are compelled to dissent.

The parties own adjoining lots on Crestwood Lane in a residential subdivision known as "Forest Heights Estates" situate in the Town of Amherst, New York. Plaintiffs, Gary and Marsha Lichtman, claim that the manner in which the defendant, Beverly Nadler, maintains her land constitutes a nuisance which interferes with the use and enjoyment of their property on which they have erected their home. They allege that stagnant waters on defendant's vacant lot produce foul odors, constitute a breeding ground for mosquitos and from time to time spill over and flood a portion of plaintiffs' premises; that poisonous plants are permitted to grow wild; and that plaintiffs are annoyed and harassed by large numbers of mosquitos and other pests and by offensive odors. Plaintiffs instituted this action seeking permanent injunctive relief, including a mandatory injunction to compel defendant to make improvements to her land, and damages for the diminution in value of their real property. They allege that defendant's "negligent and/or willful failure to remedy the conditions upon her property . . . constitute(s) . . . a nuisance".

On her motion for summary judgment defendant admitted that the land was without permanent drainage and was overgrown with trees and wild plant life, but claimed that the lot is in its natural and unimproved state and that these conditions do not, in any event, constitute a nuisance. Special Term in granting defendant's motion relied heavily upon the general rule that owners of undeveloped land have no special duty to regulate the flow of surface water from their land onto a neighbor's premises (see Davis v. Niagara Falls Tower Co., 171 N.Y. 336, 64 N.E. 4; Vanderwiele v. Taylor, 65 N.Y. 341). Quoting from Vanderwiele v. Taylor, supra, p. 347 the court found that the defendant was not required "to so improve (her) lot that (her) neighbor can make the most advantageous use of his, or be protected against its natural disadvantages".

The focal issue framed on this appeal is whether defendant's alleged "negligence and/or willful failure" to remedy the conditions complained of on her unimproved property constitutes an actionable nuisance. Plaintiffs claim that defendant's maintenance of her property interferes with the use and enjoyment of their premises and constitutes a private nuisance, as well as a nuisance per se under the provisions of the Public Health Law (Public Health Law, §§ 1500 subd. 2; 1320; 1321). Plaintiffs maintain that Special Term erred in dismissing this cause of action as a matter of law because material questions of fact were presented as to the nature, extent, duration and effect of the conditions extant on defendant's property and the reasonableness of defendant's use of her property as it affects others.

The defendant maintains on this appeal, as she did at Special Term, (1) that she has no obligation to eliminate the alleged nuisance (for which she was put on notice by the town authorities) because she may not be compelled to improve or drain her lot to prevent the flow of surface waters from her premises so long as her property is in its natural condition, (2) that she is under no duty to eradicate alleged breeding grounds for mosquitos or to destroy noxious weeds which are the natural growth of the soil if the land remains unimproved, and (3) that the Public Health Law provisions confer no right of action on private landowners.

Two distinct bases of tort liability emerge from plaintiffs' claims: (1) private nuisance and (2) public nuisance. While the term nuisance can be generally defined as "(a) source of inconvenience, annoyance, or vexation" (American Heritage Dictionary, p. 900), public and private nuisances "have almost nothing in common" (Prosser, Torts (4th ed.), § 86, p. 573). In Copart Inds. v. Consolidated Edison Co. of N. Y., Inc., 41 N.Y.2d 564, 568, 394 N.Y.S.2d 169, 172, 362 N.E.2d 968, 971, the Court of Appeals described the differences between these...