A User’s Guide to Bringing a Private Nuisance Action Ryan Parisi Law 826: Housing Court November 20, 2009 COMMONLY USED WORDS OR PHRASES “Action”- A legal proceeding brought by one party against another for damages sustained as a result of the other party’s actions or omissions. “Affidavit”- This is a written statement which is sworn to in front of a Notary Public and is given to the Court to provide them with facts relating to the action. “Compensatory Damages”- This is an award of monetary damages which is meant to compensate the Petitioner for injuries they or their property has actual sustained. “Damages”- Compensation for losses incurred through the actions of another. “Element”- This refers to the different components that make up a cause of action for private nuisance. Each element must be proved in order to prevail in the action. “Injunction” or “Injunctive relief”- This is an Order from the Court which prevents a party from doing or not doing a certain acts. “Order to Show Cause”- This is one of the documents that must be turned in the Court when initiating the private nuisance action. It is an Order from the Court which directs the named parties to appear in order to argue why or why not the Court should perform a certain action. (An example is attached at the end of this document) “Petition”- A document given to the Court asking that their authority be exercised to take a certain action. (An example is attached at the end of this document) “Petitioner”- This is the party who will be bringing or initiating the private nuisance action. “Punitive Damages”- This is an award which goes beyond compensation for the actual injury sustained. It is meant to act as a deterrent to engaging in the behavior that caused the Petitioner’s damages. “Respondent”- This is the party who is being brought into court due to their maintenance of a private nuisance. COMMON QUESTIONS AND ANSWERS 1. What is a Private Nuisance? - The courts have stated that the essence of a private nuisance is the creation or maintenance of a condition on one property that causes a compensable injury to something or someone on another property.1 In other words, a private nuisance is interference with the use or enjoyment of land that causes an injury in relation to an ownership right in the land.2 2. What elements need to be shown in court in order to prevail in an action for private nuisance? The New York State Supreme Court, Appellate Division Fourth Department has enumerated the standard for finding a private nuisance: In order to prevail upon a cause of action for private nuisance, the Petitioner must demonstrate (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct. 3 However, a private nuisance need not be based on intentional conduct. Negligent conduct which creates a nuisance can also be actionable. In these situations the elements of the action change slightly. Instead of the conduct being intentional in origin and unreasonable in character, in these situations the conduct must either be negligent or reckless.4 It is important to note, however, that the language in the Complaint (the document submitted to the court which initiates the private nuisance action) will differ slightly to reflect whether the conduct was intentional or negligent. 1 Zamzok v. 650 Park Ave. Corp., 80 Misc.2d 573 (Sup.Ct. NY Co. 1974). 2 Copart Industries, Inc. v. Consolidated Edison Co., 41 NY2d 564, 568 (1977); Turner v. Coppola, 102 Misc.2d 1043 (1980). 3 th Vacca v. Valerino, 16 A.D.3d 1159, 1160 (4 Dept. 2005) quoting Hitchcock v. Boyack, 277 A.D.2d rd 557,558 (3 Dept. 2000) (Internal Citations Omitted). 4 Copart Industries, Inc. v. Consolidated Edison Co., 41 NY2d 564, 568 (1977); See also, Chenango Inc. rd v. County of Chenango, 256 A.D.2d 793 (3 Dept. 1998). 3. How does the court analyze each of the elements of a private nuisance action? The first element of private nuisance is an “interference substantial in nature.” This leads to the question: what is substantial? Whether interference is substantial depends largely on the facts and circumstances of each individual case. The determination of substantiality is generally a question of fact for a jury as opposed to a question of law for the judge to decide. Substantiality, involves a review of the totality of the circumstances based on a balancing of the rights of the Respondent to use his or her property against the rights of the Petitioner to enjoy their property. The balancing basically amounts to a risk-utility analysis weighing the social value of the conduct involved against the harm to the private interest.5 Therefore, in order to be successful in your private nuisance action you must prove that the social value of the nuisance is outweighed the harm to you. The second element and third element are related and will change depending on whether the private nuisance is based on intentional or negligent conduct. These elements will either be that the actions are intentional in origin and unreasonable in character or actions that are negligent or reckless. Conduct is “intentional” when the person (a) acts for the purpose of causing it; or (b) knows that it is resulting or is substantially certain to result from his conduct. Therefore, the intent element may be inferred where the owner of the property where the nuisance is emanating from knows that it is resulting or if the nuisance is likely to result from the conduct.6 Reasonableness, like substantiality, is generally a question of fact rather than a question of law.7 The Court of Appeals (the highest court in New York State) has stated in regards to the reasonableness inquiry that “[n]o hard and fast rule controls the subject, for a use that is reasonable under one set of nd 5 Iny v. Collom, 13 Misc.3d 75 (2 Dept. 2006) (dissent). 6 Copart Industries, Inc. v. Consolidated Edison Co., 41 NY2d 564, 568 (1977). 7 McCarty v. Natural Carbonic Gas Co., 189 NY 40 (1907). facts would be unreasonable under another.”8 As such, there is no definite way to determine reasonableness. It will necessarily depend on the facts and circumstances of each individual situation. Also, reasonableness of the nuisance is not judged by its effect on Petitioner, but upon the effect would generally have on a reasonable person in the community. If the nuisance is based on the negligence of the property owner then the elements of negligence will have to be proved in addition to the elements of private nuisance. The elements for negligence are (1) a duty owed by the Respondent, (2) a breach of that duty, and (3) a showing that the breach of that duty constituted a proximate cause of the injury.9 The scope of the duty owed by the Respondent is defined by the risk of harm reasonably to be perceived. Therefore the duty owed is dependent upon the facts and circumstances of the individual situation. The duty is breached when it causes an injury to another party. Proximate cause basically means that the injury must have been produced by or directly resulted from the act or omissions of the Respondent. The final two elements of a private nuisance action are that the injury must be to someone who has an ownership interest in use or enjoyment of the land and the injury must be caused by another’s conduct. These two elements are fairly straightforward. Without an interest in the use of the land a person cannot maintain a nuisance action. Generally, (as will be discussed below) the owner of a property and a lessee being injured by the nuisance will have an interest sufficient to maintain the action. 4. Who can bring an action for private nuisance? There are limitations on who may bring an action for private nuisance. Generally however, someone who is who adversely affected by the nuisance is a proper Petitioner. The injury to the Petitioner can be to their use or enjoyment of the property, damage caused to their property, or to the 8 McCarty v. Natural Carbonic Gas Co., 189 NY 40 (1907). nd 9 Ingrassia v. Lividikos, 54 A.D.3d 721, 724 (2 Dept. 2008). Petitioner personally. A person in possession of real property is a proper Petitioner. Additionally, the owner of real property, whether or not they are in possession, is a proper Petitioner. Therefore, both the owner and a tenant of a property being affected by a nuisance will have standing in court to maintain the action.10 5. Who is the Respondent in a private nuisance action? First, anyone who is responsible for creating or maintaining a nuisance through their acts or omissions is a proper Respondent.11 Therefore, there may be more than one Respondent in the case. The owner of the property causing the nuisance, if he or she is in possession of it, is the proper Respondent. If the owner is not in possession then they will have to have reasonable notice of the existence of the nuisance in order to be a properly named Respondent. A lessee who maintains a nuisance may also be named as a Respondent.12 6. What types of remedies can the court give if a private nuisance is found? According to New York Real Property Actions and Proceedings § 841, in actions for nuisance the court may award damages or direct the removal of the nuisance or both.