| Massaro v Jaina Network Sys., Inc. |
| 2013 NY Slip Op 03066 [106 AD3d 701] |
| May 1, 2013 |
| Appellate Division, Second Department |
| Ralph Massaro et al., Appellants, v Jaina NetworkSystems, Inc., et al., Respondents. |
—[*1] Law Offices of Curtis Vasile, P.C., Merrick, N.Y. (Michael J. Dorry of counsel), forrespondent Jaina Network Systems, Inc. Akhilesh Krishna, Richmond Hill, N.Y., for respondent Neminath, Inc. Ackerman, Levine, Cullen, Brickman & Limmer LLP, Great Neck, N.Y. (James A.Bradley of counsel), for respondent Building Department of Incorporated Village ofWilliston Park.
In an action, inter alia, for injunctive relief and to recover damages for nuisance, theplaintiffs appeal, as limited by their brief, from so much of an order of the SupremeCourt, Nassau County (Brown, J.), dated February 17, 2012, as denied their motion forsummary judgment on the first, second, and third causes of action and on the issue ofliability on the fourth and fifth causes of action, and granted those branches of theseparate cross motions of the defendant Jaina Network Systems, Inc., joined by thedefendant Neminath, Inc., and the defendant Building Department of IncorporatedVillage of Williston Park which were for summary judgment dismissing the second andthird causes of action insofar as asserted against each of them.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying those branches of the plaintiffs' motion which were for summary judgment onthe issue of liability on the fourth and fifth causes of action, and substituting therefor aprovision granting those branches of the motion; as so modified, the order is affirmedinsofar as appealed from, with one bill of costs to the plaintiffs.
In September 2010, the plaintiffs, owners of real property abutting or near realproperty owned by the defendant Neminath, Inc. (hereinafter Neminath), and leased bythe defendant Jaina Network Systems, Inc. (hereinafter Jaina), commenced this actionagainst those defendants and the defendant Building Department of Incorporated Villageof Williston Park (hereinafter the Building Department), seeking, inter alia, injunctiverelief and to recover damages for nuisance. The plaintiffs alleged, among other things,that Jaina's use of a building other than the main building on the subject premises(hereinafter the second building) violated a provision of the Code of the IncorporatedVillage of Williston Park (hereinafter the Village Code) purportedly prohibiting morethan one "main building" per lot. In addition, the plaintiffs alleged that Jaina's placementand [*2]operation of certain equipment on the premisesbehind the second building, including heating, ventilation, and air conditioning andelectrical generator units, violated the Village Code's rear-yard setback rules and noiselimitations.
In an order dated February 17, 2012, the Supreme Court, inter alia, denied theplaintiffs' motion for summary judgment on the first, second, and third causes of action,which were, inter alia, for injunctive relief and on the issue of liability on the fourth andfifth causes of action, which were to recover damages for nuisance, and granted thosebranches of the separate cross motions of Jaina, joined by Neminath, and of the BuildingDepartment, which were for summary judgment dismissing the second and third causesof action insofar as asserted against each of them.
The plaintiffs failed to establish their prima facie entitlement to judgment as a matterof law on the first cause of action which was, inter alia, to enjoin Jaina and Neminathfrom maintaining more than one "main building" on the premises, allegedly in violationof the Village Code. The doctrine of primary jurisdiction "generally enjoins courtshaving concurrent jurisdiction to refrain from adjudicating disputes within anadministrative agency's authority, particularly where the agency's specialized experienceand technical expertise is involved" (Sohn v Calderon, 78 NY2d 755, 768[1991]; see Matter of Neumannv Wyandanch Union Free School Dist., 84 AD3d 816, 818 [2011]). Here, theplaintiffs failed to properly seek a determination regarding the legality of the use of thepremises under the Village Code from the administrative bodies authorized to administerand enforce the Village's zoning law (see Haddad v Salzman, 188 AD2d 515,517 [1992]; cf. Ain v Glazer, 216 AD2d 428, 429 [1995]). Accordingly, theSupreme Court properly denied that branch of the plaintiffs' motion which was forsummary judgment on the first cause of action.
The Supreme Court also properly granted those branches of the separate crossmotions of Jaina, joined by Neminath, and of the Building Department which were forsummary judgment dismissing the second and third causes of action which sought, interalia, to enjoin Jaina and Neminath from operating certain equipment on the premisesinsofar as asserted against each of them. The defendants demonstrated, prima facie, thatthe equipment had been removed from the rear yard of the premises and that the noiseviolation associated therewith had been abated and, thus, there was no threatened orprobable violation of the plaintiffs' property rights (see Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 AD3d 403,408 [2009]). In opposition, the plaintiffs did not raise a triable issue of fact (seeZuckerman v City of New York, 49 NY2d 557, 562 [1980]). For the same reason,the Supreme Court properly denied those branches of the plaintiffs' motion which werefor summary judgment on the second and third causes of action.
However, the Supreme Court erred in denying those branches of the plaintiffs'motion which were for summary judgment on the issue of liability on the fourth and fifthcauses of action, which were to recover damages for nuisance. "The elements of a privatenuisance cause of action are (1) an interference substantial in nature, (2) intentional inorigin, (3) unreasonable in character, (4) with a person's property right to use and enjoyland, (5) caused by another's conduct in acting or failure to act" (Donnelly v Nicotra, 55 AD3d868, 868-869 [2008] [internal quotation marks omitted]; see JP Morgan Chase Bank vWhitmore, 41 AD3d 433, 434 [2007]). Here, the plaintiffs established theirprima facie entitlement to judgment as a matter of law on the issue of liability on thefourth and fifth causes of action, which were to recover damages for nuisance, bysubmitting evidence demonstrating that, during the period of time alleged in thecomplaint, the equipment operated by Jaina violated the local noise ordinance, as well astheir affidavits, in which they averred, inter alia, that the unreasonable level of noiserendered their backyards unusable during that period of time (see JP Morgan Chase Bank vWhitmore, 41 AD3d 433 [2007]; cf. Broxmeyer v United Capital Corp., 79 AD3d 780, 783[2010]). In opposition, Jaina did not raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). Skelos, J.P., Angiolillo, Roman andMiller, JJ., concur. [Prior Case History: 2012 NY Slip Op 30507(U).]