Carroll v Radoniqi

Annotate this Case

Download PDF

Carroll v Radoniqi 2012 NY Slip Op 32356(U) September 7, 2012 Supreme Court, New York County Docket Number: 110757/2010 Judge: Judith J. Gische 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. [* 1] SCANNED ON 91121201? SUPREME COURT OF THE STATE OF NEW YORK W W YORK COUNTY PART - Index Number : 110755712010 a i W W NO. O CARROLL, WILLIAM VS. RADONIQI, MAHIR SEQUENCE NUMBER : 005 - SUMMARY JUDGMENT c I i 3 J e J.9.C. Dw a : ..................................................................... 2 CHECK As APPROPRIATE: ........................... 3. CHECK IF APPROPRIATE: ................................................ D3Elll-Em fR D 3 1. CHCCK ONE: 0Do NOT PCWl . . . . . . . . . . . . . . . . . . . . . . . ....... SUBMIT ORWR 0 FIDUCIARY APPOIWMENT .. 0F&FERENCE - ~ . . [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART I O X WILLIAM CARROLL, individually, and derivatively on behalf of THE CHARLES HOUSE CONDOMINIUM, Y l _ r _ _- r _ _ _ l *l _ l -_l -_ _ _ - l - r - _ _- l- _- l l_ - PqclalonlOrder Index #.: 110757/10 Seq. #: 004,005 Plaintiff, -against- Present: MAHIR RADONlQl and THE CHARLES HOUSE CONDOMINIUM, Hon. Judith J. Glsche J.S.C. Defendants. X Recitation, as required by CPLR 3 2219 [a] of the papers considered in the review of I - - -_ - - - - - - 1 * _ * _ 1 1 _ _ - - - - _--l _-1-__1 _ - _ _ 1 1 1 - ----- this (these) motion(s): S e a 004 %E oppwl BCW affirm, MR afid, exhs . .%p. 32 .20.13.. . . . .I. .. .. .. 3 ,, 24 !Def 13124, 31261w/BFS affirm, exhs ./. 1 -- ... ..... Motlon Seq. 005 Def n/m [3212] w/GhAC affirm, MR affid, exhs 1,2 Pltf opp w/TDB affirm, WC affid, exhs . . . . . . . . . . . . . . . . . . . . . . . . 3,4 Def reply w/ EMC affid, exhs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Eische, J.S.C.: Upon the foregoing papers, the decision and order of the court is 8s follows: Plaintiff, William Carroll ("Carroll" or "Plaintiff") has commenced this action, individually, and derivatively on behalf of The Charles House Condominium ("CHC"), sounding in breach of the duty of loyalty and nuisance, against defendants CHC and Mahir Radoniqi ("Radoniqi" sometimes "super"), CHC's superintendant. A prior motion for summary judgment by defendant CHC was granted, and the case was thereafter continued against Radoniqi only. Now, before the court, is Radoniqi's motion, pursuant to CPLR 53212,to dismiss plaintiffs second cause of action for private nuisance against him. - Page 1 of 7 - [* 3] Plaintiff opposes the motion and in a separate saquence moves to compel discovsry from Radoniqi. Issue has been joined and the note of issue has not yet been filed. Summary judgment relief is, therefore, available. CPLR 5 3212;Mvuns Chun V. North AmeflWl Mortqam Ca;285 A.D.2d 42 [ l s t Dept. 20011. Facts and Arguments Plaintiff is an owner and shareholder of CHC. The court now considers whether Radoniqi is entitled to summary judgment on the second cause of action against him. The second cause of action consists of a nuisance claim that Plaintiff brought, in his individual capacity, against Radoniqi. Carroll alleges that Radoniqi caused excessive amounts of noise in carrying out the "unlawful" repair and renovation work within Unit 12C fo the Condominium, that the noise Interfered wlth the quiet enjoyment of the unit owners on the 11, 1 ' 2 ' , and 13' floors, and that Carroll was particularly affected. Carroll alleges that the work was conducted during business hours, for about four months, beginning January of 2008. Carroll claims that the annoyance and Inconvenience from the repairs to his neighbor's property amount to an actionable private nuisance and he seeksdamages that include the diminished value of the use and occupancy of his unit during the relevant time period. Carroll sued Radoniqi for damages that Include sums far the loss of use of Carroll's unit. Radoniqi claims that there is no evldenm that he created an actionable nuisance. Radoniqi claims that: [l] use of the renovated property was reasonable, [2]the the evidence does not support an objmtive finding of nuisance, [3] the tort may not be based solely on the Carroll's subjective perceptions, [4] single or non-recurring amounts of even excessive amounts of noise cannot comprise an acthable nuisance, [5]t h e lack of - Page 2 of 7 - [* 4] ? permits o approvals for Radoniqi's work does not give rise to a nuisance cause of action, r and [6] Radoniqi cannot be liable under nuisance law for,the absence of a kltchen in Unit 12C. Finally, Radoniqi claims that Carroll has not established special damages because he was not constructivelyevicted from his property, that Carroll cannot otherwise prove any compensable damages, and that Carroll lacks standing to assert a nuisance cause of action on behalf of others. Carroll reasserts his claims in the complaint and argues that Radoniqi engaged in "illegal" construction by utilizing a reciprocating saw and rotary sanders. Plaintiff claims that such use cause significant noise pollution, which amounts to a nuisance to Carroll. Furthermore, plaintiff claims that pursuant to 3212(f), there remain questions of fact as the to extent of Radoniqi's construction activity and his alleged non-compliance with statutorily required noise mitigation policies. Discussion An award of summary judgment is appropriate when no issues of fact exist. See CPLR 3212(b);Sun Yau Ko v, Lincaln Sav. Bank, 99 A.D.2d 943 (1st Dept., 1984), 62 N.Y.2d 938 (1984); Andre v. PQmerov,35 N.Y.2d 361,362 N.Y.S.2d 131 (1974). On a motion for summary judgment, the proponent bears the tnitial burden of eetting forth evidentiary facts to prove a pdme feci@ case that would entitle it to judgment in its favor, without the need for a trial. CPLR 5 3212; Winesrad v. NYU Me C e m , 64 N.Y.2d 851 (1985); &ckamap v. Cltv of New Yo rk, 49 N.Y.2d 557, 562 (1980). Only if it meets this burden, will it then shift to the patty opposing summary judgment who must then establish the existence of material issues of fact, through evidentiary proof in admissible form, that would require a trial of this action. Zucke r -Page 3 of 7 - m v. C jtv of New York, supm. If the [* 5] proponent fails to make out its prima facie case for summary judgment, however, then its motion must be denied, regardless of the sufficiency of the opposing papers, Alvarez v, PwweGt HOSP 68 N.Y.2d 320 (1986); Avotte v. Gervaslo, 81 N.Y.2d 1082 (1993). ital, Preliminarily, the court addresses Radoniqi s argument that Carroll lacks standing to assert a nuisance cause of actlon on behalf of others. Although Radoniqi claims that Carroll has no standing to bring this claims on behalf of the other tenant shareholders, it is clear from the complaint the second cause of action is brought only by Carroll, as an individual, in his own capacity. Thus, there is no need to grant any relief on the bash of standing on behalf of any other shareholder tenants. A private nuisance is a continuous or persistent condition that threatens the comfort and safety of neighboring tenants and which is likely to recur. Pomen_Hnldrnq CQtV. Aranavich, 1 N.Y.3d 117 (2003). A private nuisance requires a showing of an intentional and substantial interference with the rlght to use or enjoyment of land. Cwart. Inds. v. sonsolidated E&Qn C0.of NY, 41 N.Y.2d 564, 570 (1977). The law of private nuisance involves a balancing of interests. Persons who live in organized communities have to tolerate some damage, annoyance ar lnconvenience from each other. Nussbaum v, Lacmo, 27 N.Y.2d 311 (1970). The prevailing philosophy has been that noise and odors are an inescapable realtty of urban life; indeed, mere annoyance in and of itself does not create a nuisance. Twin Manaqement . v, Banks, 181 Misc. g6,9B (NY Mun.Ct 1943). . . nese v VaIIQne, 168 Misc 2d 446,452 [Civ Ct 19951 rev d, 174 Misc 2d 312 [App Term 19971 mv d, 255 AD2d 167 [lst Dept lS98]. A person who resides in the center of a large city must not expect to be surrounded by the stillness which prevalls in a rural district. No one is entitld - Page 4 of 7 - [* 6] to absolute quiet in the enjoyment of his property; he may only insist upon a degree of quietness consistent with the standard of comfort prevailing in the locality in which he dwells. Peonle on Comnlaint of Gershbera v Arkow, 204 Misc 635,639 [NY Magis Ct 19531(internal citations and quotations omitted). In determining whether a defendant s use of property is a nuisance, the court must weigh the gravity of the harm to plaintiff against the utility and necessity for defendant s &, conduct. Little Josenh I & Inc, w. Babvlon, 41 N.Y.2d 738 (7977).The interference must be substantial, not trifling, material and actual not fanciful or sentimental. Conart Inds, v. Consolidat4 Edison Co,of NY, 4 1 N.Y.2d 564, 572 (1977).A plaintiff must, however, come forward with proof sufficient to demonstrate a triable issue of fact to avoid summary judgment. See h g m v. Bellinget, 203 A.D.2d 857, 858 (3d Dept 1894). Radoniqihas established his prima facie case, the work done to apartment 12C was routine, not extraordinary and wlthin business hours. Plaintiff, however, argues that Radoniqi s renovation work gave rise to an actionable nuisance since Radoniqidid not past a Construction Noise Mitigation Plan throughout the building. NYC Noise Codes 28-100, 30-102, et seq. Generally, ordinary repairs and minor alteration of the interior of buildings, which do not materially affect structural features, do not necessitate buildlng permits. 19 NYCRR 1203.3. He does not dispute that the noise at issue was a short-term use of an electric saw and electric sander (which plaintiff did not dispute sounds like a vacuum cleaner). Aqor v BenneQ,271 AD 1024 [Zd Dept 19471; Universitv Towerg AssocrGibsnn, 18 Misc. 3d 349, 352 (NY Sup King Co 2007); 7 nsur poldoff, 187 Misc. 458 (App Term 1946) affd, 272 AD 1039, 74 NYS2d 910 (1st Dept 18.47). There are no reported violations. Here, there - Page 5 of 7 - I no indication that plaintiff was s [* 7] prohibitedfrom using or enjoying their property or that defendants exercised unreasonable control over the property. Plaintiff's failure to support his claim at this juncture with any r expert testimony or empirical evidence is fatal. See Jrrc, v Samii, 73 A.D.3d 617, 618 (1st Dept 2010); Hnlv Name of JQSUQRoman Catholis Church v. New Yark Citv T r m i t Author& , 2 8 AD3d 520,521 (2d Dept.2006); Lopez v. ' Jnsurance C0 . of North Amer icq, 289 A.D.2d 205 (2d Dept.2001); Twin RwvclinQ Corp. v, Yevolr', 224 A.D.2d 628 (2d Dept.1998), aff'd90 N.Y.2d 1000 (1997); -a rd i v, Perry's Boats, 92 A.D.2d 250,254 (2d Dspt 1983). Plaintiff alleges various violations of the Noise Code, and claims that further discovery is necessary to determine what tools defqndant used in the remodeling. However, he already has that information, and in any event, h e knows from his own personal knowledge what he heard. Yet he still i unable to demonstrate facts that show s the noise was at unacceptable levels, rising to a private nuisance. His own afftdavit i bare s boned and conclusory. It does not describe the noise level, nor is there specificity about when it occurred. Where a party opposed to summary judgment contends that dhcovery is incomplete, the court may consider whether the motion is premature because the information necessary to fully oppose the motion remeins under the control of the proponent of the motion. CPLR 5 3212 (9;Lewis v, Safetv Diseswl Svstem of Pennsvlvania, Inc,, 12 A.D.3d 324 (1st Dept. 2004); SjlQbal MlneraIs and Met@ corn. v. I-lQIme, 35 A.D.3d 93 (1st Is Dept 2006) (internal citations omitted). The court rejects the contentions that additional discovery from Radoniqi is needed. The mere hope that the parties can uncover useful evidence i an insufficient reason to postpone consideration of plaintiffs motion, and the s defendants have failed to demonstrate how further discovery might yield material factsthat [* 8] I 4 would warrant the denial of summaryjudgmant at a later time. $eel iq v. Burqer Kina Corn., 66 A.D.3d 988 (2d Dept 2009). Therefore, this motion is not premature although brought befure discovery is complete. For the reasonsstated above the defendants motion for summary (motionsequence 005) i granted and plaintiffs motion to compel disclosure (motion sequence 004)is denied s as moot. In view of this courts prior order (dated October 20,2011) this action is finally resolved by this motion. Conclusion In accordance herewith, it is hereby: ORDERED that motion sequence 005, defendant Mahir Radonlqi s motion, is granted as to summary judgment dismissing the complaint against him, on the second Cause of Action; and it is further ORDERED that motion sequence 004, Plaintiff, William Carroll s motion is denied as moot; and it is further ORDEREDthat any requested relief not expressly addressed has nonetheless been considered and is hereby denied; and it is FVrLFD ORDERED this shall constitute the decision an ardsr of the Dated: New York, New York September 7, 2012 SEP 1 2g&dered: NEW YORK I \ HON.. W - Page 7 of 7 - f urt.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.