| Schillaci v Sarris |
| 2014 NY Slip Op 08072 [122 AD3d 1085] |
| November 20, 2014 |
| Appellate Division, Third Department |
[*1]
| Theresa Schillaci et al., Respondents, v George Sarriset al., Appellants. |
George Sarris, Clifton Park, appellant pro se.
Oliver Law Office, Albany (Lewis B. Oliver of counsel), for Joy Sarris,appellant.
Galvin & Morgan, Delmar (Madeline Sheila Galvin of counsel), forrespondents.
Egan Jr., J. Appeal from an order of the Supreme Court (Nolan Jr., J.), enteredOctober 26, 2012 in Saratoga County, which, among other things, partially denieddefendants' motions for summary judgment dismissing the complaint.
At all times relevant, plaintiffs and defendants each owned property located onWoodside Drive in the Town of Clifton Park, Saratoga County; plaintiffs purchased theirproperty in 1991, and defendants purchased the property next door to plaintiffs in 1999.According to plaintiffs, defendants thereafter expanded an existing pond located on theirproperty in order to create a nature preserve for passing waterfowl. Defendants' efforts inthis regard were found to be in violation of the local zoning code (Sarris v Town of Clifton Park,38 AD3d 981, 982-983 [2007], lv denied 8 NY3d 814 [2007]), anddefendant George Sarris was fined accordingly (Town of Clifton Park v Sarris, 81 AD3d 1207, 1208[2011]).
In the interim, plaintiffs commenced this action in 2005 alleging—insofar as isrelevant here—that the large number of waterfowl attracted to defendants' propertyconstituted a private nuisance and, further, that the resulting noise and excrementamounted to a continuing trespass. Following joinder of issue, plaintiffs moved by orderto show cause for a preliminary injunction, seeking to enjoin defendants from keeping orfeeding wild waterfowl on their property. Defendants, in turn, successfully moved toamend their answer, wherein they asserted counterclaims for intentional infliction ofemotional distress, defamation and setoff. Supreme Court (Ferradino, J.) issued atemporary restraining order precluding defendants from feeding any nonresident fowl ontheir property and, following a lengthy hearing, granted plaintiffs' request for apreliminary injunction in December 2006—contingent upon the posting of a$10,000 undertaking. Specifically, Supreme Court enjoined defendants from"maintaining a feeding station for both wild and domesticated [waterfowl] and poultry ontheir property"—except as to those waterfowl under George Sarris's care andtreatment in his capacity as a wildlife rehabilitator—and, further, directeddefendants to remove "all domestic or wild fowl or poultry" from their property. Theparties debate the extent to which defendants complied with this directive and, in 2008,plaintiffs sold their property and relocated.
In March 2009, plaintiffs moved for summary judgment, and defendantscross-moved for similar relief. Supreme Court (Ferradino, J.) denied both motions.Thereafter, in March 2011, George Sarris, proceeding pro se, moved for summaryjudgment dismissing plaintiffs' complaint; plaintiffs opposed this motion andcross-moved for, among other things, summary judgment as to their private nuisancecause of action. In May 2012, defendant Joy Sarris (George Sarris's spouse), moved for,among other things, summary judgment dismissing plaintiffs' complaint, which plaintiffsagain opposed. By order entered October 26, 2012, Supreme Court (Nolan Jr., J.), amongother things, denied the parties' respective motions as to plaintiffs' private nuisance andtrespass causes of action, granted defendants' motions for summary judgment dismissingplaintiffs' third cause of action (premised upon water intrusion into plaintiffs' basement),granted plaintiffs' request to release the previously posted undertaking and dismisseddefendants' counterclaims. Defendants separately—andunsuccessfully—moved to reargue and now appeal from Supreme Court's October2012 order.
Preliminarily, we note that although defendants each purport to appeal from SupremeCourt's denial of their respective motions to reargue, the record before us does notcontain a notice of appeal in this regard; in any event, no appeal lies from the denial of amotion to reargue (see WellsFargo, N.A. v Levin, 101 AD3d 1519, 1520 [2012], lv dismissed 21NY3d 887 [2013]). Turning to the merits, defendants—as so limited by theirbriefs—initially contend that Supreme Court erred in denying their motions forsummary judgment dismissing plaintiffs' first and second causes of action sounding inprivate nuisance and trespass. We disagree.
"Private nuisance is established by proof of intentional action or inaction thatsubstantially and unreasonably interferes with other people's use and enjoyment of theirproperty" (Nemeth vK-Tooling, 100 AD3d 1271, 1272 [2012] [citation omitted]; see Ivory v International Bus.Machines Corp., 116 AD3d 121, 131 [2014], lv denied 23 NY3d 903[2014]; Overocker vMadigan, 113 AD3d 924, 926 [2014]). As a private nuisance claim involves theright to use and enjoy the land in question, no actual intrusion onto the plaintiff'sproperty is required (seeVolunteer Fire Assn. of Tappan, Inc. v County of Rockland, 101 AD3d 853,856 [2012]) and no actual damage to the property itself need be shown (see Ivory vInternational Bus. Machines Corp., 116 AD3d at 131). Further, "[e]xcept for theissue of whether the plaintiff [possesses] the requisite property interest, each of the[remaining] elements is a question for the jury, unless the evidence is undisputed" (Gedney Commons HomeownersAssn., Inc. v Davis, 85 AD3d 854, 855 [2011] [internal quotation marks andcitation omitted]; accordBroxmeyer v United Capital Corp., 79 AD3d 780, 782-783 [2010]; seeFuterfas v Shultis, 209 AD2d 761, 763 [1994]). Trespass, on the other hand,involves "an intentional entry onto the land of another without justification orpermission" (Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 101AD3d at 855; see Marone vKally, 109 AD3d 880, 882 [2013]; Spellburg v South Bay Realty, LLC, 49 AD3d 1001, 1002[2008]).
In support of their motions for summary judgment, defendants did nothing more thanargue that plaintiffs failed to plead—and ultimately will be unable toprove—compensable damages and, therefore, dismissal of plaintiffs' first andsecond causes of action sounding in private nuisance and trespass was warranted. Evenassuming, without deciding, that defendants' assessment of plaintiffs' pleadings andexamination before trial testimony is accurate, the case law makes clear that the movingparty must affirmatively demonstrate its entitlement to summary judgment "and does notmeet its burden [in this regard merely] by noting gaps in its opponent's proof" (Malamas v Toys "R" Us-Delaware,Inc., 94 AD3d 1438, 1438 [2012] [internal quotation marks and citationomitted]; see Overocker v Madigan, 113 AD3d at 925; DiBartolomeo v St. Peter's Hosp.of the City of Albany, 73 AD3d 1326, 1327 [2010]). Similarly, the fact thatplaintiffs have sold their residence does not compel dismissal of their claims, as they stillpotentially are entitled to either temporary nuisance damages, as measured by thereduction in the usable value of their property (see Doin v Champlain Bluffs Dev. Corp., 68 AD3d 1605,1613 [2009], lv dismissed 14 NY3d 832 [2010]), or—at the veryleast—nominal damages (see Taverni v Broderick, 111 AD3d 1197, 1200 [2013];Doin v Champlain Bluffs Dev. Corp., 68 AD3d at 1613). Finally, as the record asa whole otherwise contains conflicting proof as to the substantiality andunreasonableness of defendants' alleged interference with plaintiffs' use and enjoymentof their property and/or defendants' actual intrusion thereon, Supreme Court properlydenied defendants' motions for summary judgment dismissing plaintiffs' first and secondcauses of action.
Defendants next contend—again, as so limited by their respectivebriefs—that Supreme Court erred in sua sponte dismissing their first counterclaimfor intentional infliction of emotional distress.[FN*] Although CPLR 3212 (b)—citedby Supreme Court here—indeed permits a court to search the record and grantsummary judgment to a nonmoving party, Supreme Court's authority in this regardextends "only . . . to a cause of action or issue that is the subject of themotions before the court" (Dunham v Hilco Constr. Co., 89 NY2d 425, 430[1996]; see Scott v Beth IsraelMed. Ctr., Inc., 41 AD3d 222, 223-224 [2007]). Stated another way, "[a] motionfor summary judgment addressed to one claim or defense does not provide a basis for thecourt to search the record to grant summary judgment on an unrelated claim or defense"(Frank v City of New York, 211 AD2d 478, 479 [1995]; see Sadkin v Raskin& Rappoport, 271 AD2d 272, 273 [2000]).
Here, there is no question that the parties' various motion papers could have beendrafted with greater clarity. That said, inasmuch as defendants expressly requested thatSupreme Court "establish[ ] a schedule for discovery concerning defendants'counterclaims" and asked that "the case [be] set down for trial," we cannot conclude thatdefendants sought summary judgment as to their first counterclaim. Similarly, despitecounsel's representations in plaintiffs' brief on appeal, the record does not reflect thatplaintiffs affirmatively sought dismissal of this counterclaim in the context of their crossmotion for summary judgment, and the record as a whole otherwise fails to disclose thatthe parties charted a course for summary judgment in this regard (see generallyMihlovan v Grozavu, 72 NY2d 506, 508 [1988]; James v Bain, 86 AD3d 675, 676 [2011]). Accordingly, weagree that Supreme Court erred in sua sponte dismissing defendants' first counterclaim.Moreover, based upon our review of, among other things, the parties' respectiveaffidavits, we cannot say that this counterclaim is amenable to summary resolution in anyevent.
We also find merit to defendants' argument that Supreme Court erred in releasing theundertaking previously imposed in connection with the preliminary injunction granted toplaintiffs. CPLR 6312 (b) provides, in relevant part, that "prior to the granting of apreliminary injunction, the plaintiff shall give an undertaking in an amount to be fixed bythe court, that the plaintiff, if it is finally determined that he or she was not entitled to aninjunction, will pay to the defendant all damages and costs which may be sustained byreason [there]of." As the Court of Appeals has explained, "[a] preliminary injunction,unless sooner abrogated, continues in force until judgment in the action is rendered. Solong as it continues the bond cannot be canceled" (J. A. Preston Corp. v FabricationEnters., 68 NY2d 397, 405 [1986] [citations omitted]). Contrary to plaintiffs'assertion, the fact that this Court has held that defendants are precluded by the relevantzoning code from maintaining a nature preserve for waterfowl on their property(Sarris v Town of Clifton Park, 38 AD3d at 982-983) does not constitute a final"determination on the merits of whether the [preliminary] injunction was erroneouslygranted" (Bonded Concrete, Inc.v Town of Saugerties, 42 AD3d 852, 856 [2007]). Pending such determination,Supreme Court erred in releasing the undertaking. Defendants' remaining contentions, tothe extent not specifically addressed, are either not properly before us or have beenexamined and found to be lacking in merit.
Peters, P.J., Stein, Rose and Clark, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as dismissed defendants' firstcounterclaim for intentional infliction of emotional distress and released plaintiffs'undertaking; said counterclaim and undertaking reinstated; and, as so modified,affirmed.
Footnote *:Although George Sarrisbroadly asserts that Supreme Court erred in dismissing "defendants' counterclaims,"he—as well as his spouse—only substantively address the dismissal of theirfirst counterclaim. Accordingly, we deem any argument as to the dismissal of defendants'second and third counterclaims to be abandoned (see Roohan v First Guar. Mtge., LLC, 97 AD3d 891, 892[2012]).