| Balunas v Town of Owego |
| 2008 NY Slip Op 09327 [56 AD3d 1097] |
| November 26, 2008 |
| Appellate Division, Third Department |
| Edward W. Balunas et al., Respondents, v Town of Owego,Appellant. |
—[*1] Cahill & Beehm, Endicott (Robert S. Beehm of counsel), for respondents.
Malone Jr., J. Appeal from that part of an order of the Supreme Court (Tait, J.), enteredDecember 26, 2007 in Tioga County, which partially denied defendant's motion to dismiss thecomplaint.
Plaintiffs commenced this action seeking damages and a permanent injunction prohibitingdefendant from constructing a water tank—35 feet in diameter and 30 feet high—ona parcel of land that abuts their property. Specifically, plaintiffs alleged that defendant violatedthe State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]), thatdefendant's construction of the tank would constitute an unlawful taking, and the tank would be apublic and private nuisance. Plaintiffs also moved, by order to show cause, for a preliminaryinjunction prohibiting defendant from continuing the construction of the tank. Defendant thenmoved to dismiss the complaint. Supreme Court denied plaintiffs' motion for a preliminaryinjunction and partially granted defendant's motion, dismissing the first three causes of action.Defendant now appeals from that part of the order denying its motion with respect to plaintiffs'fourth cause of action, which alleged a private nuisance.
As is relevant here, a private nuisance is an intentional interference with a person's right touse and enjoy his or her property that is "substantial in nature" and "unreasonable in character"(Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570 [1977]; see LaJoy v Luck Bros., Inc., 34 AD3d1015, 1016 [2006]; Dugway, Ltd. v Fizzinoglia, 166 AD2d 836, 837 [1990]).Plaintiffs alleged in their complaint that the water tank will substantially interfere with [*2]the use and enjoyment of their property because it will be locatedapproximately 60 feet from their property line and will be "clearly visible from all parts of theirbackyard and home." However, " 'things [that are] merely disagreeable, which simply displeasethe eye . . . no matter how irritating or unpleasant, are not nuisances' " (Dugway,Ltd. v Fizzinoglia, 166 AD2d at 837, quoting 81 NY Jur 2d, Nuisances § 17, at 333).As such, plaintiffs' allegation that the water tower will be visible from their home is insufficientto raise an inference of a substantial interference, even reasonably inferring from plaintiffs'allegations that the tower will be unsightly (see Dugway, Ltd. v Fizzinoglia, supra). Noris plaintiffs' allegation that their home would be damaged in the event of a tankrupture—which was raised for the first time in opposition to defendant's motion todismiss—sufficient inasmuch as such danger is speculative and theoretical, rather than"known or substantially certain to result" (Christenson v Gutman, 249 AD2d 805, 808[1998]; see Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d at 571).
Moreover, although allegations contained in the complaint are generally accepted as true forpurposes of deciding motions to dismiss, plaintiffs' allegations that defendant failed to conductany SEQRA review or to consider alternative proposals for the location and design of the tankare "flatly contradicted by [the] documentary evidence" and, thus, can be rejected (1455Washington Ave. Assoc. v Rose & Kiernan, 260 AD2d 770, 771 [1999] [internal quotationmarks and citations omitted]; see Maas v Cornell Univ., 94 NY2d 87, 91 [1999]). Assuch, plaintiffs likewise failed to sufficiently allege that defendant's actions were unreasonable.Accordingly, defendant's motion to dismiss the complaint should have been granted in itsentirety.
Cardona, P.J., Spain, Rose and Stein, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as partially denied defendant's motion todismiss; motion granted in its entirety and complaint dismissed; and, as so modified, affirmed.