Kinley v. Atlantic Cement Co.

Kane, J. These are cross appeals from a judgment of the Supreme Court, entered February 20, 1973 in Albany County, upon a decision of the court at a Trial Term in favor of plaintiffs. Six years ago this action, together with seven others, was tried in Supreme Court, Albany County, and resulted in a determination that the defendant, a cement manufacturing company, created a nuisance insofar as plaintiffs’ lands were concerned. It was found that the granting of a permanent injunction would cause an intolerable hardship upon the defendant and public as well, and damages were granted to each plaintiff in various specific amounts up to the time of trial, with the effect that future successive actions at law could thereafter be maintained if the nuisance continued (Boomer v. Atlantic Cement Co., 55 Misc 2d 1023). On appeal we affirmed (Boomer v. Atlantic Cement Co., 30 A D 2d 480), but the Court of Appeals reversed (Boomer v. Atlantic Cement Co., 26 N Y 2d 219) and remitted the cases “to Supreme Court, Albany County to grant an injunction which shall be vacated upon payment by defendant of such amounts of permanent damage to the respective plaintiffs as shall for this purpose be determined by the court.” In reaching this result the Court of Appeals overruled the doctrine that where a nuisance has been found and where there has been any substantial damage shown by the party complaining, an injunction will be granted. In an advisory fashion, the Court of Appeals noted (p. 228) that ‘ ‘ Although the Trial Term has found permanent damages as a possible basis of settlement of the litigation, on remission the court should be entirely free to re-examine this subject. It may again find the permanent damage already found; or make new findings.” [498] In April, 1971 only three of the seven cases remained unsettled, and they were tried to conclusion on the damages issue only with expert testimony as to respective values in 1971. The prop< r rule to be applied in this case in determining the amount of permanent damages plaintiff is entitled to due to a permanent nuisance is the difference between the market value of the property before and after the nuisance (42 N. T. Jur., Nuisance, § 61). The court below determined this amount to be $140,000 represented by a before value of $265,000 and an after value of $125,000, both as of April, 1971, and well within the range of testimony. To this amount the court added as temporary damages the sum of $35,000 for the period October 1, 1962 to June, 1967, based upon the testimony at the prior trial and in accordance with the directive from the Court of Appeals. Given latitude from the Court of Appeals, it was appropriate for the trial court to find as it did, and we find the determination of the permanent damages, present, past and future not to be excessive based upon the evidence produced. While the trial court did consider the “ contract price theory ” and the “ special market value rule ”, it rejected these approaches as punitive and inflated in value, and concluded by properly applying the fair market value rule. We find that the granting of plaintiffs’ leave to amend the ad damnum clause at the start of the trial (CPLB 3025, subd. [b]), the award of the additional allowance to plaintiffs (CPLB 8303, subd. [a], par 2), and the award of interest (CPLB 5001) all were within the trial court’s power and discretion. The judgment should be affirmed, without costs.