Massaro v Jaina Network Sys., Inc.

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Massaro v Jaina Network Sys., Inc. 2012 NY Slip Op 30507(U) February 17, 2012 Supreme Court, Nassau County Docket Number: 17256/10 Judge: Jeffrey S. Brown Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. Sc. [* 1] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRE S E NT: HON. JEFFREY S. BROWN JUSTICE TRIAL/IAS PART 17 RALPH MASSARO, SARA MASSARO, PHYLLIS W ALTERS and DIANE KOLOMICK, Plaintiffs, Index No. - against - JAINA NETWORK SYSTEMS, INC., NEMINATH INC., and THE BUILDING DEPARTMENT OF THE INCORPORATED VILLAGE OF WILLISTON PARK, 17256110 Mot. Seq. # 4 Mot. Date 9. 12 & 10. 31.11 Submit Date 12. 20. Defendants. The following papers were read on this motion: Papers Numbered Notice of Motion , Cross Motion........................................................................... 1 Answering Affidavits............................................................................................. 4 Reply Affidavit...................................................................................................... 6 Memorandum of Law............................................................................................. 8 The plaintiffs collectively move for an order granting summary judgment on their first second and third causes of action , as well as for an order granting partial summary judgment on their fourth and fifth causes of action (Sequence #004). Defendant , Jaina Network Systems , Inc. (hereinafter JainaJ, cross-moves for an order granting summary judgment dismissing the plaintiffs ' first , second and third causes of action (Sequence #005). [* 2] Defendant, the Building Deparment (hereinaft the Vilage), cross-moves for an of the Incorporated Vilage of Wiliston Park order granting summar judgment dismissing the plaintiff ' first , second and third causes of action (Sequence #006). Hilside Avenue, in Defendant Neminath is the owner of the premises located at 235 Browne Affrmation in Support (see Wiliston Park , New York (hereinafter the subject premises) , the first of which 5). Said property is presently improved with two buildings at Exh. A at Hilside Avenue , and the second of houses a delicatessen and a Subway sandwich shop fronting which is located towards the rearost property line (id. at 9). Between 1952 and 2008 , this second building allegedly functioned as an accessory building supporting the activities and uses (id. attendant to the first at 9). In or about 2008 , Neminath and Jaina entered into an agreement whereby Jaina leased the second building from Neminath and utilized same " as an international telephone exchange (id. at 1 0; see also Exh. housing equipment that processes and routes telephone calls overseas Cat p. 7). Thereafter , Jaina installed two electrical generators, a wood frame utility shed and two three feet to one- foot- ten inches from HV AC units , all of which were located anywhere between " (id. the rearost propert line at 11; see also Exh. C at p. 2). It appears that while Jaina , the Vilage originally installed these structures in the absence of the required building permit , the (id. ultimately issued same at Exh. C at p. 2). Subsequently, in either late 2009 or early 2010 the rear yard set back Vilage revoked said permits finding that the structures violated the 8(G) of the Vilage Code of Wiliston Park (hereinafter requirements contained in 9230- 13). In the face of this revocation , Jaina sought an area variance from the and June 14 \ 2010 , held Zoning Board of Appeals (hereinafter ZBA), which, on May 17 Vilage Code) (id. at [* 3] (id. hearings in connection therewith at Exh. C). During the course of these hearings, plaintiffs s use of the second counsel objected to Jaina s variance application and also argued that Jaina which it building was in contravention of 9230-4 of the Vilage Code inasmuch as the lot upon was situated was already occupied by another commercial building, to wit: the subway shop and delicatessen (id. , 2010 , the ZBA at Exh. C at pp. 4 7). By written decision dated August 9 denied the area variance requested by Jaina and stated " the proposed variance is substantial" and the equipment at issue in its present location produces an undesirable change in the character of the neighborhood and is a detriment to a nearby residential property (id. at Exh. C at p. 8). The ZBA fuher noted that "the Building Department has not been asked for its interpretation of the Vilage Code as to whether (Jaina s) use of the Premises , without regard to the HV AC units generators , and utility shed at issue in this proceeding, are lawful uses under the Vilage Code. Accordingly, this Board finds that this issue of use is not ripe for its review. On September 10 , 2010 , (id.). the plaintiffs moved by order to show cause for a preliminary injunction , whereby the Honorable Daniel R. Palmieri issued a preventing Jaina from operating the HV AC and generator units temporar restraining order (see Dorr Affdavit in Support of Cross- Motion at Exh. G). Simultaneously therewith , the plaintiffs filed the underlying complaint wherein the first , second and third causes of action seek declaratory and injunctive (see Browne relief and the fourh and fifth causes of action each sound in private nuisance Affirmation in Support at Exh. A). The applications respectively interposed by the moving paries thereafter ensued and are determined as set forth hereinafter. The Court initially addresses the application interposed by the plaintiffs. In support thereof, counsel revives his assertion that Jaina s continued use of the second building blatantly [* 4] contravenes Vilage Code 9230-4(B) and as such the plaintiffs are entitled to judgment on their first cause of action permanently enjoining the defendants ' illegal use of the subject premises (see 28). Counsel additionally contends that Browne Affrmation in Support at since the placement of the generators and HV AC units violates the setback requirements recited in Vilage Code 9230- 8(G), the plaintiffs are also entitled to judgment on their second and third causes of action permanently enjoining Jaina and Neminath from maintaining said units (id. , 22 29). Finally, as to the fourth and fifth causes of action sounding in private nuisance , counsel asserts that Jaina intentionally operated the HV AC units at decibel levels in excess of70 thereby violating the relevant noise ordinances and depriving the plaintiffs of the quiet use and enjoyment of their properties (id , 32 34). To this point , counsel provides inter alia the at affdavit of plaintiff, Ralph Massaro , whose " northerly property line abuts the rear line ofthe subject premises (see propert 2). Mr. Massaro states that " (fJrom Massaro Affidavit at time of their installation in 2008 , until Jaina removed the HV AC units and the , apparently, disabled the generator in September 2010 , my wife and I were unable to use and enjoy our backyard. . . because the constant noise from (the HV unpleasant" (id at AC and generator units) was simply too loud and 7). Mr. Massaro further avers that in May of 20 I 0 , he " purchased a factory- calibrated sound level meter " and " measured noise at levels of approximately 72when one HV AC unit was running and levels of approximately 78- units were in operation (see Massaro Affidavit at 12). 73 decibels 79 decibels when both HV AC [* 5] The plaintiffs ' within application is opposed by defendants Neminath , Jaina and the Village , with the latter two defendants cross-moving for summary judgment dismissing the plaintiff s first , second and third causes of action. The Court wil initially address the crossmotion interposed by J aina. JAINA In support of the cross-application , counsel for Jaina argues that while the plaintiffs characterize the use of the subject premises by Jaina and Neminath as ilegal , they have never properly sought administrative review from either the building department or the ZBA , thereby warranting dismissal of the first , second and third causes of action ~~31 (see Dorr Affidavit at 36). Counsel further contends that as the HV AC and generators units have been removed from the rear yard of the subject premises , there is no violation , either threatened or probable , with respect to the plaintiffs ' property rights and accordingly the issuance of a permanent injunction is patently inappropriate (id. at ~~18 38). In addition to cross-moving for summar judgment , Jaina paricularly opposes those branches of the plaintiffs ' application seeking partial summar judgment on the fourth and fifth causes of action sounding in nuisance. In the submitted opposition , counsel for Jaina argues that there are material questions of fact as to whether the noise generated by the subject equipment was substantial in nature and unreasonable in character, thus waranting denial of the plaintiffs I The Court notes that by way of an affrmation dated , September 30 h, 20 II , counsel for Neminath appears to be seeking affrmative relief in the form of summary judgment dismissing the plaintiff's first , second and third causes of action. However, as the notice requirements set forth in CPLR92215 have not been satisfied , this Court could not entertain the request for relief recited in counsel' s affirmation (CPLR 92215). The Court further notes that in opposing the plaintiffs ' application , counsel for Neminath expressly adopts those arguments set forth by counsel for Jaina Krishna Affrmation in Opposition to Plaintiffs ' Motion for Summary Judgment and in Support of (see Jaina s Cross Motion). ," [* 6] application (id at ~~42 46,49). Counsel paricularly challenges the above-referenced Massaro affidavit and argues that the plaintiff s failure to set forth his credentials as to sound measurement renders his conclusions devoid of probative value (id at ~45). The Village As to the application submitted by the Vilage , counsel asserts that the first cause of action must be dismissed given the plaintiffs ' failure to pursue administrative relief from either the building inspector or the ZBA (see Defendant' s Memorandum of Law at pp. 1- 9). Counsel fuher argues that the damages alleged by the plaintiffs are too conclusory to constitute special damages , and as such the plaintiffs may not circumvent administrative review prior to seeking judicial redress (id. at pp. 7). Finally, counsel argues that inasmuch as the HV AC and generator units have been removed from the rear yard of the subject premises and given that the plaintiffs second and third causes of action assume the presence of said equipment at this former location these actions must be dismissed as moot (id at p. 9). Decision As recited in the Verified Complaint , the plaintiffs ' first cause of action seeks an order declaring Jaina and Neminath' s operation of two main buildings on a single lot as ilegal permanently enjoining said defendants from the continued use thereof and directing the Village to revoke any certificates of occupancy or certificates of completion issued in connection therewith (see Browne Affrmation in Support at Exh. A at ~24). As a general rule one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law (Watergate II Apartments v Bufalo Sewer Authority, 46 NY2d 52 , 57 (1978); Town of Oyster Bay v ," [* 7] Kirkland 81 AD3d 812 (2d Dept 2011)). In the absence of extraordinary circumstances courts are constrained not to interject themselves into ongoing administrative proceedings until final resolution of those proceedings before the agency Galin AD3d 829 (2d Dept 2010) quoting (Tahmisyan Stony Brook University, 74 Chassin 217AD2d 446 (1995)). Notwithstanding these general precepts , the Court of Appeals has held that " (t)he exhaustion rule. . . is not an inflexible one " and " need not be followed. . . when an agency s action is challenged as either unconstitutional or wholly beyond its grant of power Authority, 46 NY2d 52 (Watergate II Apartments Buffalo Sewer Moreover , one who has suffered " special damages as the supra). result of a violation of a zoning ordinance " is entitled to commence a plenary action to enjoin the violation , irrespective of a failure to initially pursue available administrative remedies Salzman, (Haddad 188 AD2d 515 (2d Dept 1992)). In the matter sub judice the plaintiffs indeed contend that they have collectively sustained special damages and thus can immediately seek judicial intervention. However , even under circumstances where a plaintiff is entitled to eschew the administrative process and forthwith pursue legal action (t)he doctrine of primar jurisdiction provides that where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges. . . the court wil stay its hand until the agency has applied its expertise to the salient questions 816 (2d Dept 2011) quoting Haddad (Neumann Ffacke Salzman 188 AD2d 515 Wyandanch Union Free School Dist. 84 AD3d Onondage Landfill Systems, Inc. 69 NY2d 355 (1987); supra). Here , the exposition and ultimate disposition of the issues raised as to the defendants' purported illegal use of the subject premises [* 8] clearly fall within the specialized knowledge and experience of the administrative agencies charged to enforce the Vilage Code (id.). Accordingly, given the paricularized nature of the plaintiffs ' claims and mindful of the prudential concerns ariculated by controllng appellate authority, this Court hereby stays the plaintiff's first cause of action pending determination by the appropriate administrative body (id). In accordance therewith , that branch ofthe plaintiffs ' application seeking an order granting summary judgment on the first cause of action is hereby DENIED and those branches of the applications respectively interposed by Jaina and the Vilage , which seek an order granting summar judgment dismissing the plaintiffs ' first cause of action , are similarly DENIED. The cour now turns to the plaintiffs ' second and third causes of action , both of which seek declaratory and permanent injunctive relief. A review of the complaint indicates that the plaintiffs ' prayer for relief is predicated upon the presence of the HV AC and electrical generator units in the rear yard of the subject premises and the excessive noise emanating therefrom (see Browne Affirmation in Support at Exh. A at ~~26- 35). " A permanent injunction is a drastic remedy which may be granted only where the plaintiff demonstrates that it wil suffer irreparable har absent the injunction (Icy Splash Food Beverage, Inc. v Henckel 14 AD3d 595 (2d Dept 2005) at 596). Moreover , injunctive relief is " to be invoked only to give protection for the future. . . (t)o prevent repeated violations , threatened or probable , of the (plaintiffs ) property rights (Merkos l' Inyonei Chinuch, Inc. v Sharf, Bakery 59 AD3d 403 (2d Dept 2009) quoting Exchange Rest. v Rifin 245 NY 260 , 264- 265 (1927)). In the instant matter , the record establishes that both the HV AC and generator units have been removed from the rear yard of the subject premises. Moreover , plaintiffs ' counsel concedes [* 9] that said structures have been removed and the attendant noise has indeed abated. Thus , based upon the record as developed herein , there is an absence of evidence as to any threatened or probable violations of the plaintiffs ' property rights. Accordingly, those branches of the plaintiffs ' application seeking an order granting summary judgment on the second and third DENIED and those branches of the applications respectively causes of action are hereby interposed by Jaina and the Vilage, which seek an order granting summar judgment dismissing the plaintiffs ' second and third causes of action , are hereby GRANTED. Finally, and as noted above , the fourth and fifth causes of action both sound in private (see nuisance in connection to which the plaintiffs seek partial summar judgment thereon Browne Affirmation in Support at Exh. A at ~~42- 51). In order to grant summary judgment Guildfor the Blind Glick 3 NY3d 295 (2004) quoting Dolleck, Inc. NY2d 439 441 (1968)). It is well settled that the proponent ofa prima facie judgment must demonstrate a Jewish (Forrest must clearly appear that no material and triable issue of fact is presented" Tri-Pac Export Corp. , 22 motion seeking summary showing of entitlement to judgment as a matter of law by providing evidentiary proof, in admissible form , sufficient to establish the absence of material issues of fact (Alvarez Prospect Hospital 68 NY2d 320 (1986)). An award of summary judgment is not appropriate " where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable (id). If a suffcient prima facie showing is demonstrated , the burden shifts to the non-moving par to come forward with competent evidence to demonstrate a material issue of fact , the existence of which necessarily precludes the granting of summary judgment and necessitates a trial (Zuckerman City of New York 49 NY2d 557 (1980)). On a motion for summary judgment [* 10] (c )redibilty determinations , the weighing of evidence , and the drawing of legitimate inferences from the facts are jury functions , not those of a judge , whether he (or she) is ruling on a motion for summar judgment or for a directed verdict" supra 295 (2004), quoting Anderson (Forrest Liberty Lobby, Inc.477 Jewish Guildfor the Blind 3 NY3d US 242 (1986)). Of particular relevance herein are the elements constituting a claim sounding in private nuisance , which are comprised of the following: " (1) an interference 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" Copart Industries 2012WL 310499 (2d Dept 2012) quoting (Berenger v 261 West LLC, Consolidated Edison Co. afNew York, Inc. 41 NY2d 564 570 (1977) . (E)xcept for the issue of whether the plaintiff has the requisite propert interest , each of the other elements is a question for the jur, evidence is undisputed" Commons Homeowners Association, Inc. (Weinberg Lonbardi 217 AD2d 579 (2d Dept 1995); Davis 85 AD3d 854 (2d Dept 2011); unless the Gedeny Broxmeyer United Capital Corp. 79 AD3d 780 (2d Dept 2010). Here , in supporting the plaintiffs ' claims that the sound levels were substantial in nature counsel relies principally, although not exclusively, upon the afore-referenced affdavit of Ralph Massaro. While Mr. Massaro indeed concludes that Jaina operated the HV AC and generator units in excess of 70 decibels , nowhere therein does he provide a proper basis upon which his opinions are predicated; Particularly, in opining as to the sound levels , Mr. Massaro does not in any respect set forth his professional credentials in the area of acoustics and sound measurement (Forrest Jewish Guildfor the Blind 3 NY3d 295 supra). Thus , having carefully reviewed the submissions of the parties and viewing the facts in a light favorable to the non-moving party, this 10- [* 11] Court finds that there are material questions as to Mr. Massaro s competence to properly render the opinions articulated in the supporting affdavit 557 , supra). City of New York 49 NY2d (id.; Zuckerman Therefore , as the plaintiffs ' have failed to establish their entitlement to judgment as a matter of law, those branches of the plaintiffs ' application , which seek an order granting partial summary judgment on the fourth and fifth causes of action sounding in nuisance , are hereby DENIED. Based upon the foregoing, it is ORDERED , that the Plaintiffs ' Motion for Sumar Judgment on the complaint is DENIED in its entirety; and it is further ORDERED , that the summar judgment applications respectively interposed by Jaina and the Vilage , are hereby DENIED as to the Plaintiffs ' first cause of action , and GRANTED as to the Plaintiffs ' second and third causes of action. This constitutes the decision and order of the court. All applications not specifically addressed herein are denied. Dated: Februar 17 2012 ENTERED FEB 24 2012 rf\ )1 00/'(\ FFREY S. BROWN NASSAU COUNTY COUNTY CLERK' S OFFICr Attorney for Plaintiff Atty for Defendant Jaina Christian Browne , PC Akhilesh Krishna , Esq. Ackerman Levine Cullen Brickman Limmer , LLP 127- 21 Liberty Avenue Richmond Hill , NY 11419 1010 Northern Blvd. , Ste. 400 Great Neck , NY 11021 1050 Franklin Avenue , Ste.402 Garden City, NY 11530 11- Atty for Defendant Bldg Dept

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