Opinion
November 4, 1983
Appeal from the Supreme Court, Chautauqua County, Ricotta, J.
Present — Dillon, P.J., Callahan, Doerr, O'Donnell and Moule, JJ.
Order unanimously reversed, with costs, and motion denied. Memorandum: Special Term erroneously granted summary judgment to defendants in this private nuisance action. The issue of whether a use constitutes a private nuisance ordinarily turns on questions of fact, one of which concerns the reasonableness of the use under the circumstances ( Copart Inds. v Consolidated Edison Co., 41 N.Y.2d 564; McCarhy v Natural Carbonic Gas Co., 189 N.Y. 40). Here, the record of testimony taken at examinations before trial reveals conflicting testimony as to the reasonableness of defendants' activities and the degree of interference with plaintiffs' use and enjoyment of their land. Thus summary judgment should not have been granted (see Ugarriza v Schmieder, 46 N.Y.2d 471; Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395). The record fails to reveal whether defendants' property is zoned agricultural. Even if it is, however, and defendants' operation of a veal production business is a permissible use, plaintiff is not precluded from bringing this action (see Sweet v Campbell, 282 N.Y. 146). Moreover, Special Term erred in finding that defendants' activity is protected under section 1300 Pub. Health of the Public Health Law. By its terms, that section does not apply in the circumstances presented. Finally, there is no merit to defendants' argument that the complaint fails to state the essentials of a cause of action for private nuisance (see Copart Inds. v Consolidated Edison Co., supra).