| Overocker v Madigan |
| 2014 NY Slip Op 00158 [113 AD3d 924] |
| January 9, 2014 |
| Appellate Division, Third Department |
| John D. Overocker, Jr. et al., Respondents, v Daniel J.Madigan et al., Appellants. |
—[*1] Tully Rinckey, PLLC, Albany (Douglas J. Rose of counsel), forrespondents.
Garry, J. Appeal from an order of the Supreme Court (Hummel, J.), enteredSeptember 17, 2012 in Rensselaer County, which, among other things, denieddefendants' motions for partial summary judgment.
Plaintiffs keep horses in a fenced pen on their property in the Town of Pittstown,Rensselaer County, where they allege that horses have been kept since before theypurchased the property in 1989. Defendants, who purchased a neighboring property in1994, hold a driveway easement at the edge of plaintiffs' property and built a storm drainunder the driveway in either 2005 or 2009. In 2010, plaintiffs commenced this actionraising claims pursuant to RPAPL article 15 and for trespass to real property, allegingthat the storm drain extends beyond the boundaries of defendants' easement and ontoplaintiffs' unencumbered property. Defendants answered and asserted counterclaims forprivate nuisance and per se nuisance based on the proximity of plaintiffs' horse pen totheir residence, in alleged violation of a local law. Thereafter, defendants moved forpartial summary judgment on the per se nuisance counterclaim and for partial summaryjudgment dismissing plaintiffs' trespass cause of action. Plaintiffs cross-moved forsummary judgment dismissing the per se nuisance counterclaim. Supreme Court denieddefendants' motions and granted plaintiff's cross motion. Defendants appeal.
Supreme Court properly denied defendants' motion for partial summary judgmentdismissing plaintiffs' trespass claim. Defendants, as the movants, bore the initial burdento [*2]submit evidentiary proof in admissible formdemonstrating their entitlement to judgment as a matter of law—a burden thatcannot be met by pointing to deficiencies in plaintiffs' proof (see DiBartolomeo v St. Peter'sHosp. of the City of Albany, 73 AD3d 1326, 1327 [2010]; Rothbard vColgate Univ., 235 AD2d 675, 678 [1997]). To document their claim that the stormdrain was constructed within the bounds of their easement, defendants submitted theirdeed, which does not mention the storm drain, photographs of the storm drain that do notreveal its location, and a survey of defendants' property that does not show the stormdrain and, in any event, is inadmissible as it was not supported by a surveyor's affidavitor other foundational proof (seeBergstrom v McChesney, 92 AD3d 1125, 1127 [2012]). Additionally,defendants submitted an affidavit of defendant Daniel J. Madigan that neither indicatesthe storm drain's specific location nor asserts that it is contained within defendants'easement. As these submissions do not establish that no part of the storm drain is locatedon plaintiffs' unencumbered property, defendants did not meet their prima facie burden toestablish their entitlement to summary judgment dismissing the trespass claim, withoutregard to the adequacy of plaintiffs' opposition (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]; Patterson v Palmieri, 284 AD2d 852,853 [2001]; Roushia v Harvey, 276 AD2d 970, 971-972 [2000]).
The trespass claim is not time-barred even if the drain was constructed, as defendantscontend, in 2005, as a trespass that consists of an unlawful encroachment on the propertyof another is a continuing wrong that gives rise to successive causes of action (see Bloomingdales, Inc. v NewYork City Tr. Auth., 13 NY3d 61, 66 [2009]; Petti v Town of Lexington, 92AD3d 1111, 1114-1115 [2012]). We further reject defendants' claim that the actionmust be dismissed for failure to join a necessary party—namely, a third party whoholds another easement over the same driveway. While this third party's rights mighthave been affected if this dispute were related to use of the easement (see e.g. Schaffer v Landolfo,27 AD3d 812, 812 [2006]), plaintiffs' trespass claim does not involve easementrights nor any claim against the third party, but instead clearly asserts that the storm drainis located on their unencumbered property. Defendants thus failed to show that the thirdparty might be inequitably affected by a judgment on the trespass claim or that joinder isrequired to permit complete relief to be accorded (see CPLR 1001 [a];compare Buckley v MacDonald, 231 AD2d 599, 600 [1996]).
Finally, defendants contend that Supreme Court erred in denying their motion forsummary judgment on their counterclaim for per se nuisance and in granting plaintiffs'cross motion for summary judgment dismissing this counterclaim.[FN1] The per se nuisance claim is based upon the undisputed location of plaintiffs' horse penabout 100 feet from defendants' home, in alleged violation of a local law that requiressuch pens to be separated from dwellings by at least 500 feet (see Local Law No.1 [2010] of Village of Valley Falls § 9). We disagree with defendants that thedeclaration in the local law that such a violation is a "nuisance" (see Local LawNo. 1 [2010] of Village of Valley Falls § 7) is sufficient, without more, to establishtheir [*3]claim of nuisance per se.[FN2] A showing that the pen is unlawful excuses defendants only from proving that plaintiffs'actions were negligent or intentional; the other elements of a nuisance cause of actionmust still be shown (see State of New York v Fermenta ASC Corp., 238 AD2d400, 403 [1997], lv denied 90 NY2d 810 [1997]). A private nuisance claimrequires a showing of "intentional action or inaction that substantially and unreasonablyinterferes with other people's use and enjoyment of their property" (Nemeth v K-Tooling, 100AD3d 1271, 1272 [2012]; see Copart Indus. v Consolidated Edison Co. ofN.Y., 41 NY2d 564, 570 [1977]; Langan v Bellinger, 203 AD2d 857,857-858 [1994]; see also Guzzardi v Perry's Boats, 92 AD2d 250, 254 [1983]).Defendants did not prove entitlement to summary judgment on the per se nuisance claim,as they relied exclusively on the alleged local law violation and offered no proof that thehorse pen's placement caused a substantial or unreasonable interference—andnotably, such determinations "ordinarily turn[ ] on questions of fact" (Futerfas vShultis, 209 AD2d 761, 763 [1994] [internal quotation marks and citation omitted]).
We agree with defendants that plaintiffs's cross motion for summary judgmentshould not have been granted. Seeking to prove that the horse pen is not unlawful,plaintiffs submitted minutes from a municipal board meeting and a letter from a codeenforcement officer stating that the local law—passed in 2010—is notretroactive and does not apply to the preexisting horse pen. These unsworn submissionsdo not constitute evidentiary proof in admissible form sufficient to support a summaryjudgment motion (see UlsterCounty, N.Y. v CSI, Inc., 95 AD3d 1634, 1636 [2012]; Matter of PatriciaYY. v Albany County Dept. of Social Servs., 238 AD2d 672, 674 [1997]).Nevertheless, it remains defendants' burden to establish the horse pen's illegality at trial."The general rule against interpreting statutes or ordinances retrospectively, especiallywhere vested rights are involved, applies to zoning ordinances" (Matter of Town ofIslip v Caviglia, 73 NY2d 544, 560 [1989]). Municipalities have power to restrict thepreexisting use of property to keep animals for recreational purposes (see People vMiller, 304 NY 105, 109 [1952]). Here, however, the municipality has not enforcedits local law against plaintiffs, and the text of the law does not reveal its applicability toprior nonconforming uses. Accordingly, this issue remains to be resolved (compareNemeth v K-Tooling, 100 AD3d at 1274-1275).
Lahtinen, J.P., Stein and McCarthy, JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as granted plaintiffs' crossmotion for summary judgment dismissing defendants' counterclaim for per se nuisance;cross motion denied; and, as so modified, affirmed.
Footnote 1: There is no significancein Supreme Court's misidentification of the claim it was dismissing as the "secondcounterclaim for private nuisance." The second counterclaim in fact alleged per senuisance, the parties' motions were confined to that counterclaim, and the court's analysisclearly addressed the per se nuisance claim.
Footnote 2: " 'There is perhaps nomore impenetrable jungle in the entire law than that which surrounds the word"nuisance" ' " (Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564,565 [1977], quoting Prosser, Torts at 571 [4th ed]).