Opinion
100126/2014
09-26-2017
Denise Suares, Plaintiff, v. 89 St. Nicholas Place Association, GILMAN MANAGEMENT CORPORATION, SUZETTE WALSH and TREVOR WALSH, Defendants.
Appearances: Jay Stuart Dankberg, Esq. Attorney for Plaintiff 1220 Broadway—Suite 502 New York, NY 10001 James B. Fishman Fishman Rozen, LLP Attorneys for Defendants Suzette Walsh and Trevor Walsh 305 Broadway Suite New York, NY 10007 Barry Schwartz, Esq. Attorneys for Defendants 80 St. Nicholas Place and Gillman Management Corp. 119 West 57th Street, Suite 813 New York, NY 10019
Appearances: Jay Stuart Dankberg, Esq. Attorney for Plaintiff 1220 Broadway—Suite 502 New York, NY 10001 James B. Fishman Fishman Rozen, LLP Attorneys for Defendants Suzette Walsh and Trevor Walsh 305 Broadway Suite New York, NY 10007 Barry Schwartz, Esq. Attorneys for Defendants 80 St. Nicholas Place and Gillman Management Corp. 119 West 57th Street, Suite 813 New York, NY 10019 Carmen Victoria St. George, J.
In this nuisance action, plaintiff alleges that defendants Suzette and Trevor Walsh run a home-based daycare program in unit 2G of 80 St. Nicholas Place, the building in which plaintiff also resides. Plaintiff alleges that the noise and disturbance from the daycare have disrupted her life and caused her emotional and physical distress, and that defendants 89 St. Nicholas Place Association (St. Nicholas) and Gilman Management Corporation (Gilman) have allowed the condition to continue despite her numerous complaints. Currently, defendants Suzette and Trevor Walsh move for summary judgment dismissing all claims against them, and defendants 89 St. Nicholas Place Association and Gilman Management Corporation cross-move for discovery sanctions and summary judgment. The court issued an interim order which resolved the discovery portion of the cross-motion on August 3, 2017. In addition, plaintiff stipulated to discontinue this action as to defendant Trevor Walsh. Therefore, only the applications for summary judgment as against the remaining defendants are before the court.
Ms. Walsh alleges that summary judgment is appropriate because plaintiff has not shown that she has created a nuisance, that the noise level is unreasonable, that there is malicious intent behind it, or that it has substantially impacted plaintiff's ability to enjoy and use her apartment. In support of this second argument, Ms. Walsh annexes a ruling in the holdover proceeding that St. Nicholas brought against them, which, in pertinent part, stated that Ms. Walsh's operation of the facility did not constitute a violation of the law; a letter from the Department of Health approving the daycare program with a maximum of fourteen children between 8:00 a.m. and 6:00 p.m.; a license from the New York State License of Children and Family Services (OCFS) for the daycare center and one for Ms. Walsh herself; a letter from OCFS stating that, in response to a complaint filed against the daycare program, it had investigated and found the complaint to be unsubstantiated; photographs showing the padding placed on the floor to absorb noise. Also, she states that plaintiff sent only ten complaints over a period of almost three years, a miniscule amount in the context of a nuisance action. She argues that in light of the above, the case should be dismissed.
In opposition, plaintiff alleges that the Walsh motion relies on the statements of counsel, who has no personal knowledge of the case, and therefore it should not be considered. She contends that large portions of the statements in Ms. Walsh's affidavit are hearsay and should be disregarded. She argues that even if Ms. Walsh had the right to operate a daycare center, that does not preclude plaintiff from bringing this nuisance case as it involves distinct issues. She alleges that she has shown that because of the noise and disruption she is being treated for stress and therefore she has established that there has been a substantial interference with her right to live in her apartment. Finally, she alleges that when, at deposition, Ms. Walsh acknowledged that the children at the center make noise and even throw tantrums on occasion, and that this behavior is typical of children, she implicitly conceded that a nuisance exists.
She also asks for sanctions against the Walsh's counsel for raising this argument, but as plaintiff did not cross-move for affirmative relief, the Court does not address this issue.
In reply, Ms. Walsh states that her motion does not rely on hearsay. Some of the challenged statements, she notes, relate to counsel's introductory statements summarizing his arguments, and thus do not require personal knowledge. The remainder of the challenged statements cite to Ms. Walsh's deposition, which has evidentiary value. She states that plaintiff's conclusory statements to the contrary carry no weight. She contends that Dr. Solanki's letter, which describes plaintiff's alleged health issues, is hearsay and impermissible as the basis for plaintiff's opposition. Plaintiff's argument that the legality of the daycare center is irrelevant is misguided, as its license establishes that it is permissible for there to be levels of noise that are normal for a daycare center. As plaintiff only alleges normal levels of noise for a daycare facility, she concludes, she cannot establish a cause of action for nuisance.
As St. Nicholas and Gilman relies on Ms. Walsh's arguments in favor of summary judgment, the Court shall not address them separately. --------
On a motion for summary judgment, the movant has the burden of providing evidence sufficient to show the absence of any material factual issues (Schmidt v One New York Plaza Co. LLC, — NY3d — [1st Dept Aug. 8, 2017] [avail at 2017 WL 3388590, at *1]). If the movant makes this showing, then the burden shifts to the opposing party to show, through materials of evidentiary value, that a triable issue of fact exists (Bedke v Chelsea Gardens Owners Corp., 2010 WL 1641147, *3 [Sup Ct NY County March 25, 2010, No. 601112/2009] [citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
To sustain a cause of action for private nuisance, the plaintiff must show that the defendant substantially interfered with the plaintiff's right of enjoyment of his or her property, that the interference was intentional, that the intrusion was unreasonable in character, and that causation exists between the defendant's action and the invasion of the plaintiff's property rights (Ewen v Maccherone, 32 Misc 3d 12, 15 [App T 1st Dept 2011]). The interference is deemed intentional if the defendant knows his or her actions will interfere with the plaintiff's use and enjoyment of the property (Chelsea 18 Partners, LP v Mak, 90 AD3d 38, 43 [1st Dept 2011]). On a summary judgment to dismiss a complaint alleging nuisance, evidence demonstrating that the defendant did not violate a building code provision or local ordinance is not conclusive by itself (see 61 West 62 Owners Corp. v CGM Emp LLC, 16 NY3d 822, 823 [2011]), but is sufficient to shift the burden of proof to the plaintiff (See Massaro v. Jaina Network Sys., Inc., 106 AD3d 701, 703 [2nd Dept 2013] [finding that proof of violations established nuisance]).
Here, Ms. Walsh has submitted evidence sufficient to shift the burden of proof to plaintiff. She has shown that she and the daycare center are properly licensed, that plaintiff filed complaints about the noise only ten times in three years, and that OCFS found a complaint against Ms. Walsh and the center to be unsubstantiated. She also shows that an attempt to evict them from the building because of the daycare center failed.
In opposition, plaintiff primarily challenges the evidence as conclusory and lacking in value. For the most part, this argument is incorrect. Counsel is allowed to summarize the arguments he subsequently will establish with evidentiary support; Ms. Walsh's counsel does not claim that the summary itself has evidentiary weight. Ms. Walsh is a party with personal knowledge of the facts. In addition, the doctor's letter that plaintiff submits, which states that plaintiff has suffered physically and mentally due to the alleged nuisance, is not in evidentiary form (see Washington v City of Yonkers, 293 AD2d 741, 741 [2nd Dept 2002] [regarding unauthenticated photographs]) — and, moreover, relates to damages rather than to liability. The fact that plaintiff has been inconvenienced and extremely disturbed on occasion by the normal operations of the center is insufficient to establish the type of substantial interference necessary for a nuisance claim (See Nemeth v K-Tooling, 100 AD3d 1271, 1273-73 [1st Dept 2012]); Ewen, 32 Misc 3d at 14-15). Significantly, plaintiff cited Ms. Walsh's deposition testimony that children occasionally would run around or in other ways make noise, and that this was normal for a daycare center. If the normal operations of a daycare center created a private nuisance, then permits would never be issued for them in residential buildings. Finally, the Court notes that there is no affidavit by plaintiff herself in opposition to the motions.
The Court has considered plaintiff's other arguments and they do not alter its conclusion. Accordingly, it is
ORDERED that the motion and cross-motion are granted and the action is dismissed. The Clerk is directed to enter judgment accordingly.
This order obviates the need for the parties to appear for further argument on October 5, 2017. Dated:, 2017 ENTER: ____________________________________ Carmen Victoria St. George, J.S.C.