Nemeth v. K–Tooling

• Decision Date: 29 November 2012
• Citation: 2012 N.Y. Slip Op. 08186,955 N.Y.S.2d 419,100 A.D.3d 1271
• Parties: Joseph NEMETH et al., Appellants, v. K–TOOLING et al., Respondents. (Action No. 1.) Valerie Garcia, Appellant, v. K–Tooling et al., Respondents. (Action No. 2.)
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 1271
955 N.Y.S.2d 419
2012 N.Y. Slip Op. 08186

Joseph NEMETH et al., Appellants,
v.
K–TOOLING et al., Respondents. (Action No. 1.)
Valerie Garcia, Appellant,
v.
K–Tooling et al., Respondents. (Action No. 2.)

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

Nov. 29, 2012.

[955 N.Y.S.2d 420]

Sussman & Watkins, Goshen (Michael H. Sussman of counsel), for appellants.

Pope & Schrader, LLC, Binghamton (Alan J. Pope of counsel), for respondents.

Before: MERCURE, J.P., SPAIN, STEIN, McCARTHY and GARRY, JJ.

McCARTHY, J.

[100 A.D.3d 1271]Appeal from an order of the Supreme Court (Reynolds Fitzgerald, J.), entered August 13, 2010 in Delaware County, upon a decision of the court in favor of defendants.

[100 A.D.3d 1272]Defendants operate manufacturing businesses from a residentially-zoned property in the Village of Hancock, Delaware County.

[955 N.Y.S.2d 421]

The property includes a separate building in the rear of the property and a brick building near the street that contains living quarters on the second floor and manufacturing space in the first floor and basement, with an addition to the basement constructed in 2001.

Plaintiff Valerie Garcia purchased a home on an adjacent parcel in 2002. In early 2004, plaintiffs Joseph Nemeth and Donna Nemeth purchased a vacation home on the other side of defendants' parcel. The Nemeths commenced action No. 1 against two defendants alleging that the noises and odor created by their manufacturing operations constituted a private nuisance, and seeking to enjoin an alleged violation of the Village of Hancock Zoning Law. Garcia commenced action No. 2 against all three defendants essentially seeking the same relief. ¹ Following a bench trial, Supreme Court dismissed the actions. Plaintiffs appeal.

Supreme Court did not err in dismissing the private nuisance cause of action. Following a bench trial, this Court has the power to grant any judgment warranted by the facts, taking into account the trial court's advantage of seeing the witnesses ( see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 [1983];Matter of Sunburst Assoc., Inc., 93 A.D.3d 1045, 1047, 941 N.Y.S.2d 289 [2012] ). Private nuisance is established by proof of intentional action or inaction that substantially and unreasonably interferes with other people's use and enjoyment of their property ( see Doin v. Champlain Bluffs Dev. Corp., 68 A.D.3d 1605, 1611–1612, 894 N.Y.S.2d 169 [2009],lv. dismissed14 N.Y.3d 832, 900 N.Y.S.2d 724, 926 N.E.2d 1229 [2010] ). Plaintiffs and two neighbors testified regarding the offensive odors and loud noises coming from defendants' manufacturing processes at all hours seven days a week. The neighbors also testified that essentially no noises could be heard in the winter, when the doors are closed.

While it is clear that plaintiffs find the noise and odor emanating from defendants' property offensive and annoying, defendants submitted contrary evidence not only from themselves, their owners or employees, but also from objective sources. The Village health officer, who conducted an investigation after plaintiffs complained to the Village Board, testified and submitted[100 A.D.3d 1273]his report finding that “[t]he sound of machinery was minimal,” “[t]he smell was minimal and not offensive,” and the noise and odor from defendants' property was overshadowed by those of traffic on the street. The Village engineer, who is also a certified code enforcement officer, investigated at the request of the Village and concluded that the noise was not a discernable problem. An industrial hygienist from the Department of Labor concluded that noise emissions inside the buildings were acceptable and the decibel level outside of the buildings where the manufacturing occurred did not rise above that of a normal conversation. Defendants also submitted a video walk-through of the manufacturing operation, which Supreme Court found was similar to that experienced during the court's tour of the facility. The court noted that, despite the residential zoning, this was a mixed-use street where multiple businesses were operating prior to plaintiffs' purchase of their parcels. Considering all of this evidence, the

[955 N.Y.S.2d 422]

record supports the determination that any interference with plaintiffs' property due to defendants' manufacturing operations did not rise to the level of being “ substantial in nature” and “unreasonable in character” to a person of ordinary sensibilities ( 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 [1977];see Balunas v. Town of Owego, 56 A.D.3d 1097, 1098, 867 N.Y.S.2d 788 [2008],lv. denied12 N.Y.3d 703, 876 N.Y.S.2d 704, 904 N.E.2d 841 [2009];Chenango, Inc. v. County of Chenango, 256 A.D.2d 793, 794, 681 N.Y.S.2d 640 [1998] ). Thus, the court properly dismissed the nuisance cause of action.

Contrary to plaintiffs' assertion, Supreme Court did not hold that plaintiffs...