Wlody v. Birch Family Servs., Inc.

Wlody v Birch Family Servs., Inc. (2022 NY Slip Op 06735) Wlody v Birch Family Servs., Inc. 2022 NY Slip Op 06735 Decided on November 23, 2022 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on November 23, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department COLLEEN D. DUFFY, J.P. REINALDO E. RIVERA DEBORAH A. DOWLING JANICE A. TAYLOR, JJ. 2020-03510 (Index No. 715248/18) [*1]Trudy Wlody, respondent, et al., plaintiffs, v Birch Family Services, Inc., appellant. Moritt Hock & Hamroff LLP, Garden City, NY (Robert L. Schonfeld and Matthew S. De La Torre of counsel), for appellant. Ruskin Moscou Faltischek, P.C., Uniondale, NY (E. Christopher Murray of counsel), for respondents. DECISION & ORDER In an action, inter alia, to recover damages for private nuisance and trespass, the defendant appeals from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), entered March 13, 2020. The order, insofar as appealed from, denied those branches of the defendant's motion which were for summary judgment dismissing the causes of action alleging private nuisance and trespass insofar as asserted by the plaintiff Trudy Wlody. ORDERED that the order is affirmed insofar as appealed from, with costs. The plaintiff Trudy Wlody owns certain property located in Howard Beach. The defendant is the owner of an adjoining property. In October 2018, the plaintiffs commenced the instant action, inter alia, to recover damages for private nuisance and trespass. The plaintiffs alleged, among other things, that, the defendant's staff and/or residents engage in "constant screams, cries, pounding walls, [and] shaking floors . . . at all hours of the night and day," play loud music, trespass onto Wlody's property, and cause damage to the plaintiffs' automobiles. The defendant moved for summary judgment dismissing the complaint. The Supreme Court, inter alia, denied those branches of the defendant's motion which were for summary judgment dismissing the causes of action alleging private nuisance and trespass insofar as asserted by Wlody. The elements of a private nuisance cause of action are an interference (1) 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 in acting or failure to act (see Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570; Aristides v Foster, 73 AD3d 1105, 1106). "The elements of a cause of action sounding in trespass are an intentional entry onto the land of another without justification or permission or a refusal to leave after permission has been granted but thereafter withdrawn" (Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 101 AD3d 853, 855 [internal citations omitted]). Here, the defendant failed to establish its prima facie entitlement to judgment as a matter of law by eliminating all triable issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). In support of its motion, the defendant proffered, inter alia, a transcript of [*2]Wlody's deposition testimony, which raised triable issues of fact as to whether the defendant trespassed onto Wlody's property and whether the conduct alleged constituted a private nuisance (see Donnelly v Nicotra, 55 AD3d 868, 869; Aristides v Foster, 73 AD3d at 1106; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324). Therefore, the Supreme Court properly denied those branches of the defendant's motion which were for summary judgment dismissing the causes of action alleging private nuisance and trespass insofar as asserted by Wlody, without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). The defendant's remaining contention is without merit. DUFFY, J.P., RIVERA, DOWLING and TAYLOR, JJ., concur. ENTER: Maria T. Fasulo Clerk of the Court