Weinberg v. Lombardi
| Decision Date | 10 July 1995 |
| Citation | 629 N.Y.S.2d 280,217 A.D.2d 579 |
| Parties | Ernest L. WEINBERG, et al., Respondents, v. Gary LOMBARDI, Appellant, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Andrew Hirschhorn, Roslyn Heights, for appellant.
Amos Weinberg, Great Neck, for respondents.
Before BALLETTA, J.P., and THOMPSON, SANTUCCI, ALTMAN and HART, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, for injunctive relief and to recover damages for trespass, the defendant, Gary Lombardi, appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Lane, J.), dated April 25, 1994, as, upon partially granting the plaintiffs' motion for summary judgment, is in favor of the plaintiffs and against him directing him to "fully roll up the shades on the balcony of his apartment except when actually using, and physically present upon, the said balcony".
ORDERED that the order and judgment is reversed insofar as appealed from, on the law, with costs, and the plaintiffs' motion is denied.
No basis existed for the Supreme Court to grant the plaintiffs' motion for summary judgment with regard to either their cause of action to recover damages for trespass or their cause of action sounding in private nuisance. With regard to the former, it is clear that the facts pleaded by the plaintiffs did not establish that by erecting a shade on his balcony, the defendant Gary Lombardi invaded the plaintiffs' interest in the exclusive possession of their premises (see, Copart Inds. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 570, 394 N.Y.S.2d 169, 362 N.E.2d 968).
The elements of the tort of private nuisance are: (1) an interference, substantial in nature; (2) intentional in origin; (3) unreasonable in character; (4) with plaintiff's right to use and enjoy land; (5) caused by the defendant's conduct (Copart Inds. v. Consolidated Edison Co. of N.Y., supra ). However, except for the issue of whether the plaintiff has the requisite property interest, each of the other elements is a question for the jury, unless the evidence is undisputed (PJI 3:16). Since in this case, Mr. Lombardi disputed the evidence relating to the other elements, no basis existed for the Supreme Court to grant the plaintiffs summary judgment on their cause of action to recover damages for private nuisance.
Lastly, we conclude that there exists a triable issue of fact as to whether Mr. Lombardi obtained the permission of the ...
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...Copart Inds. v. Consolidated Edison Co. of NY, 41 N.Y.2d 564, 570, 394 N.Y.S.2d 169, 362 N.E.2d 968 [1977]; Weinberg v. Lombardi, 217 A.D.2d 579, 629 N.Y.S.2d 280 [2d Dept. 1995] ). The elements of the tort of private nuisance are: (1) an interference substantial in nature; (2) intentional ......
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...property interest, each of the other elements is a questionfor the jury, unless the evidence is undisputed" ( Weinberg v. Lombardi, 217 A.D.2d 579, 579, 629 N.Y.S.2d 280). Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing all three caus......
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