| Aristides v Foster |
| 2010 NY Slip Op 04530 [73 AD3d 1105] |
| May 25, 2010 |
| Appellate Division, Second Department |
| John Aristides et al., Respondents, v Phillip Foster et al.,Appellants. |
—[*1]
In an action, inter alia, to recover damages for private nuisance, the defendants appeal froman order of the Supreme Court, Suffolk County (Sgroi, J.), dated May 22, 2009, which deniedtheir motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, without costs or disbursements.
The defendants Phillip Foster and Kathy Foster operate a 7-Eleven store franchise on LaurelRoad in East Northport, Suffolk County. The defendant 7-Eleven, Inc., is the franchisor. Theplaintiffs own and reside in a house on Laurel Road, separated from the 7-Eleven store by onecommercial building. The 7-Eleven store existed at the time the plaintiffs purchased their homein 1978. The plaintiffs commenced this action, inter alia, to recover damages for privatenuisance. Primarily, their claims were based on allegations that, beginning in 1999, vendorsmaking deliveries at all hours parked their tractor-trailer vehicles on the roadway, blockingaccess to the plaintiffs' home, emitting pollution and noise as the trucks idled; that patrons of thestore also parked in front of their residence, blocking access thereto; and that patrons loitered onand near the 7-Eleven store, creating noise and disturbances. The defendants moved for summaryjudgment dismissing the complaint. The Supreme Court denied the defendants' motion. Weaffirm.
The elements of a private nuisance cause of action are an interference (1) substantial innature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property rightto use and enjoy land, (5) caused by another's conduct in acting or failure to act (see CopartIndus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570 [1977]; Donnelly vNicotra, 55 AD3d 868, 868-869 [2008]; JP Morgan Chase Bank v Whitmore, 41AD3d 433, 434 [2007]; Vacca v Valerino, 16 AD3d 1159, 1160 [2005]; Zimmermanv Carmack, 292 AD2d 601, 602 [2002]). Here, the defendants failed to establish theirentitlement to judgment as a matter of law by eliminating all triable issues of fact as to whetherthe conditions alleged constituted a private nuisance and whether they caused the allegednuisance. The defendants claim that the plaintiffs "seek to blame [them] for their generaldissatisfaction with the commercial nature of the neighborhood," and assert that the plaintiffscannot prove that the vehicles which park in front of their property, obstructing their accessthereto, are not associated with the many other commercial establishments in the immediate area.However, the defendants failed to refute the plaintiffs' statements in their deposition testimony,submitted by the defendants in support [*2]of their motion, thattrucks delivering goods to the 7-Eleven store, as well as patrons of the store, frequently, evendaily and multiple times during the course of some days, park their vehicles in front of theplaintiffs' home, blocking the plaintiffs' access thereto, and leave the vehicles idling, emittingnoise and fumes. Moreover, while the 7-Eleven store existed and received deliveries by truckwhen the plaintiffs purchased their home, according to the testimony of the plaintiff SusanneAristides, in 1995, 1996, or 1997, she observed that the trucks delivering goods to the 7-Elevenstore began to be larger, 80- or 85-foot-long tractor-trailer trucks, as opposed to the "small littletiny trucks" that previously made these deliveries. Additionally, given the plaintiffs' descriptionsof the conditions created by these circumstances, contrary to the defendants' contention, theyfailed to establish that the conditions were not sufficiently substantial in nature and unreasonablein character as to constitute a private nuisance. In this regard, Susanne Aristides testified that shephotographed vehicles parked in front of the plaintiffs' home as frequently as 10 to 15 times perday. She stated that she is "out just about every day taking pictures." She also estimated that shehad recorded approximately 1,000 license plates of offending vehicles. Accordingly, theSupreme Court properly denied the defendants' motion for summary judgment dismissing thecomplaint.
The defendants' remaining contention is raised for the first time on appeal, and, accordingly,is not properly before this Court (see Wilner v Allstate Ins. Co., 71 AD3d 155 [2010]).Dillon, J.P., Balkin, Dickerson and Lott, JJ., concur.