LaJoy v Luck Bros., Inc.

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[*1] LaJoy v Luck Bros., Inc. 2005 NY Slip Op 52345(U) [18 Misc 3d 1134(A)] Decided on July 12, 2005 Supreme Court, Clinton County Dawson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 12, 2005
Supreme Court, Clinton County

Betty Lou LaJoy, Individually and as Trustee of the W.H. LaJoy Irrevocable Trust, Plaintiff,

against

Luck Brothers, Inc. and Theodore J. Luck, Defendants.



00-0953



Anderson & Buran, P.C., Burlington, Vermont (David C. Buran of counsel), for Plaintiff.

Conboy, McKay, Bachman & Kendall, LLP, Watertown (Stephen W. Gebo of counsel), for Defendants.

James P. Dawson, J.

The Court is asked to consider the Defendants' motion to renew an earlier motion for summary judgment in the above action. The Plaintiff lives on property adjacent to State Route 3 in the Town of Plattsburgh, Clinton County. She alleges that she was adversely affected by an extensive nighttime construction project conducted on that road over a period of a year from 1998 to 1999. The contractor handling the construction was the Defendant Luck Brothers, Inc., operating under a contract with New York State. The Plaintiff complains of excessive noise, light and vibrations during the period of construction and contends that Luck Brothers failed to adequately mitigate those effects despite her numerous requests to do so, resulting in damage to the Plaintiff and her property.

The Defendants previously moved for summary judgment in 2002, and that motion was denied by the Court in a decision dated October 15, 2002. In that decision, the Court found that the Defendants may owe a duty to the Plaintiff to implement reasonable mitigation measures. Given the lack of proof on that motion that the State had considered such measures when it entered into the contract with Luck Brothers, however, as well as the failure of the Defendants to show that they are not liable due to the fact that they followed the terms of the contract with the State, the Court denied the Defendants' motion without prejudice. The Court also denied the Plaintiff's request to search the record and grant summary judgment for her, finding that she had not presented any proof that the Defendants failed to use reasonable mitigation measures.

The Defendants now move again for summary judgment, although they phrase it in terms [*2]of a motion to renew the previous motion for summary judgment.[FN1] In doing so, they attach the affidavits of one of the owners of Luck Brothers, Jeffrey Luck, and the engineer-in-charge and assistant design engineer in charge of the construction project for the New York State Department of Transportation, Calvin Paquin and Ernest Reape, respectively. Paquin reveals that Luck Brothers complied with strict Federal and State regulations regarding lighting on nighttime construction projects, and that they minimized lighting and removed signs from in front of her home whenever that was possible. Paquin also shows that the use of construction equipment by Luck Brothers, while noisy, could not be avoided, that alternative equipment was equally or more noisy than that used, and that Luck Brothers accommodated the Plaintiff whenever possible by doing work in front of her house earlier in the evening (before 11 p.m.) and keeping arrow boards away from her house. It is also stated that the State will not move residents in construction zones to hotels.

Reape reviews the various standards in effect in determining whether to do construction at night, and states that the State Department of Transportation concluded that nighttime construction was necessary on State Route 3 due to the traffic volume during the day. In so doing, the State conducted a noise analysis study of the proposed project, which recommended various ways to reduce noise, such as keeping the equipment well-maintained and using newer equipment that had to comply with noise emission standards, placing stationary equipment and waste disposal areas far away from "sensitive" areas, limiting work hours and making sure the public is notified of planned construction and that a mechanism exists for dealing with complaints. Reape does not state, however, that Luck Brothers used any of those methods. And while Reape refers to other portions of that noise impact study, those portions deal with long-term noise control methods and not the short-term problem of construction noise.

The Plaintiff responds by disputing the amount and effectiveness of light and mitigation methods used by Luck Brothers in response to her complaints while the construction was occurring. She points to the presence of a gas-powered directional light placed near her home which made a significant amount of noise and remained there from March to August 1999 despite her complaints. The situation was only fixed in August 1999 when the new foreman on the site told her that replacing the sign with a quiet solar-powered one was "no problem" and did so. The Plaintiff disputes an assertion made by Jeffrey Luck that she was the only resident to complain about the noise and light, referring to a newspaper article and her own personal knowledge that other people had complained. The Plaintiff also disputes Paquin's claim that she was kept informed of what construction would be occurring, stating that she was not told anything until the final months of the construction. She also points to other noise during the construction, although she does not state that Luck Brothers failed to move the equipment near [*3]her home when asked to aside from the sign or that Luck Brothers could have reasonably done more work earlier in the evening. The Plaintiff also attaches an affidavit by Gregory Tocci, an acoustical consultant, who opines that Luck Brothers' use of a vibratory roller, even though permitted by State Department of Transportation regulations, was unreasonable due to the excessive noise and vibrations the equipment causes, the fact that the construction occurred at night and continued in the face of the Plaintiff's complaints, as well as that less noisy alternatives that eliminated vibration were also permitted. Tocci also opines that Luck Brothers should have either replaced the sign in front of the Plaintiff's house with a solar-powered sign much earlier than it did or installed a noise control enclosure on the sign's motor. Tocci also points out problems in the noise analysis relied on by Reape, and opines that the State's policy of not relocating nearby residents during a long nighttime construction project is unreasonable.

The Defendants respond and argue that the Court should not consider Tocci's criticism of the noise analysis. They also argue that Tocci substitutes his opinion for the State's in determining what type of equipment is appropriate in stating that the use of vibratory rollers were unreasonable on this construction project, and that the Defendants should not be placed in a position of being forced to guess whether the State's conclusions as to the required noise reduction were appropriate. The Defendants also contend that other arguments, such as that the State should have relocated the Plaintiff and other residents, should be directed against the State.

To the extent the Defendants argue on this motion, as they did in their first motion, that they owed no duty to the Plaintiff, the Court rejects that argument again. Luck Brothers, the contractor, arguably launched the instrument of harm that affected the Plaintiff and her property and failed to exercise reasonable care in doing so, rendering them potentially liable (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). In any event, the issue of duty is less relevant in a nuisance cause of action, as anyone who creates a nuisance or otherwise participates in its creation or maintenance is liable for it (see Penn Cent. Transp. v Singer Warehouse & Trucking, 86 AD2d 826, 828 [1982], appeal dismissed 56 NY2d 805 [1982]).

The Defendants also argue that they behaved reasonably and not negligently in mitigating the inevitable vibrations, noise and light that come with construction work (see Chenango, Inc. v County of Chenango, 256 AD2d 793, 794-796 [1998]; Celebrity Studios v Civetta Excavating, 72 Misc 2d 1077, 1082-1083 [Sup Ct 1973]). The Court finds that the Defendants have demonstrated that they behaved reasonably in dealing with the noise and light as it affected the Plaintiff's home and that they were not negligent, shifting the burden to the Plaintiff to raise a material question of fact.

The Plaintiff herself disputes the assertions of Luck and Paquin that machinery was not unnecessarily left near her home, particularly with her assertion that a gas-powered directional light remained in front of or very close to her home for several months despite her complaints, but that it was ultimately replaced after a new foreman said it was "no problem" to use a solar-powered directional light instead. In addition, the Plaintiff produces the affidavit of Tocci, who opines that the Defendants should have taken steps to reduce the noise made by the directional light or replace it with a solar-powered version sooner. Tocci also opines that the Defendants acted unreasonably in other respects by using a vibratory roller instead of another acceptable variety of roller, which caused louder noises and vibration than would otherwise occur. The [*4]Defendants are correct in pointing out that much of what Tocci takes issue with, namely the allegations regarding the State Department of Transportation's noise analysis and failure to consider relocating nearby residents, properly should be asserted against the State and not them. Having said that, the State did not require the Defendants to use a loud, gas-powered directional light or a type of roller that caused loud noise and vibration during the overnight hours near a residence, particularly given the Plaintiff's repeated complaints about the noise. From those allegations, a fact finder could conclude that the Defendants knew of the risks to the Plaintiff and "proceeded . . . in a careless and unreasonable fashion by not using such equipment and technology as reasonable prudence would dictate" (Celebrity Studios v Civetta Excavating, supra at 1083). As the Plaintiff has raised a material question of fact, the Defendants' motion is denied.

Ordered that the Defendants' motion for summary judgment is denied. Any relief requested which is not specifically granted herein is denied, and no motion costs are awarded to any party.

The original of this Decision and Order, together with the papers supplied, are returned to the Plaintiff's attorneys for filing and service with notice of entry. Those papers consist of the following: notice of motion dated February 1, 2005; affidavit of Stephen W. Gebo, sworn to February 1, 2005, with exhibits; affidavit of Jeffrey Luck, sworn to January 4, 2005, with exhibits; affidavit of Calvin A. Paquin, sworn to October 27, 2004, with exhibits; affidavit of Ernest J. Reape, sworn to December 8, 2004, with exhibits; affidavit of Betty Lou LaJoy, sworn to May 5, 2005, with exhibits; affidavit of Gregory C. Tocci, sworn to May 6, 2005, with exhibits; affirmation of David C. Buran dated May 6, 2005, with exhibits; affidavit of Stephen W. Gebo, sworn to May 10, 2005.

Decided:July 12, 2005

__________________________________________

James P. Dawson, JSC

Enter: Footnotes

Footnote 1: The Court treats this motion as one for summary judgment and not one to renew the previous summary judgment motion. The Defendants' motion was clearly made as a response to the Court's invitation to make another summary judgment motion in its earlier decision. Indeed, none of the parties even bother to address the issue of whether renewal should be allowed, instead making their arguments for or against summary judgment. Accordingly, the Court will follow the procedural course the parties have laid out.



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