| Gedney Commons Homeowners Assn., Inc. v Davis |
| 2011 NY Slip Op 05227 [85 AD3d 854] |
| June 14, 2011 |
| Appellate Division, Second Department |
| Gedney Commons Homeowners Association, Inc.,Respondent, v Lynda Luks Davis, Appellant. |
—[*1] Stephen G. Gordon, White Plains, N.Y., for respondent.
In an action, inter alia, for a permanent injunction, the defendant appeals from an order of theSupreme Court, Westchester County (Loehr, J.), entered September 7, 2010, which denied hermotion for summary judgment dismissing the complaint and upon, in effect, searching therecord, awarded summary judgment to the plaintiff on the first and third causes of action.
Ordered that the order is modified, on the law, by deleting the provisions thereof, in effect,searching the record, and awarding summary judgment to the plaintiff on the first and thirdcauses of action; as so modified, the order is affirmed, with costs to the defendant.
The plaintiff, a homeowner's association, commenced this action, ostensibly on behalf of itsmembers, against the defendant, a resident owner and member of the association. The complaintalleged that the defendant's dog had attacked the dog of another member of the association, andhad run unrestrained and unmuzzled on the common areas and on the real property of the othermembers of the homeowner's association. The complaint further alleged that the defendant wassubject to the rules and regulations of the plaintiff, including a rule that any pet kept in a home inthe association that "caus[es] or creat[es] a nuisance or unreasonable disturbance or noise shall bepermanently removed from the Property." In the first cause of action, the plaintiff sought to havethe dog permanently removed from the defendant's residence on the ground that the defendant'sconduct constituted a nuisance. In the third cause of action, the plaintiff sought to have the dogpermanently removed from the defendant's residence on the ground that the defendant hadviolated the plaintiff's rules and regulations.
The defendant moved for summary judgment dismissing the complaint, arguing that theaction was barred by the Westchester County Pet Law (Laws of Westchester County §695.11 [1]) and that her conduct did not constitute a nuisance. The Supreme Court denied thedefendant's motion and upon, in effect, searching the record, awarded summary judgment to theplaintiff on the first and third causes of action. We modify.
The elements of a private nuisance cause of action are an interference that is (1) substantialin nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's propertyright to use and enjoy land, and (5) caused by another's conduct in acting or failure to act (seeCopart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570 [1977]; Aristides v Foster, 73 AD3d 1105,1106 [2010]; Donnelly v Nicotra,55 AD3d 868, 868-869 [2008]). "[E]xcept for the issue of whether the plaintiff has therequisite property interest, each of the other elements is a question for the jury, unless theevidence is undisputed" (Weinberg v Lombardi, 217 AD2d 579, 579 [1995]; see Broxmeyer v United Capital Corp.,79 AD3d 780, 782-783 [2010]). Here, it is undisputed that the plaintiff has the requisiteproperty interest and the Supreme Court properly denied that branch of the defendant's motionwhich was for summary judgment on the first cause of action. There are triable issues of fact asto whether the defendant intentionally and unreasonably invaded the plaintiff's interest in theprivate use and enjoyment of the property. Furthermore, the Supreme Court properly denied thatbranch of the defendant's motion which was for summary judgment on the third cause of actionbecause the Westchester County Pet Law is inapplicable here (see Granada Condominium III Assn. vPalomino, 78 AD3d 996, 997 [2010]). In addition, contrary to the defendant'scontention, she was not entitled to summary judgment dismissing the remaining causes of action.
However, the Supreme Court erred by, in effect, searching the record and awarding summaryjudgment to the plaintiff on the first and third causes of action. As discussed above, there aretriable issues of fact as to whether the defendant's conduct constituted a nuisance. Moreover, theplaintiff, who relied upon excerpts from the defendant's deposition testimony, but did not submitthat testimony, failed to establish its entitlement to summary judgment on the third cause ofaction. Covello, J.P., Eng, Leventhal and Cohen, JJ., concur.