Ivory v International Bus. Machines Corp.

[*1] Ivory v International Bus. Machines Corp. 2012 NY Slip Op 52125(U) Decided on November 15, 2012 Supreme Court, Broome County Lebous, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 15, 2012
Supreme Court, Broome County

Thomas H. Ivory, THOMAS P. IVORY, TIMOTHY IVORY, SHAWN (IVORY) STEVENS, TAMI LYNN (IVORY) AZOURI, GRACE ODOM, EMMANUEL ODOM, and JAMES ODOM, Plaintiffs,

against

International Business Machines Corporation, Defendant.



2012-0768



APPEARANCES:

COUNSEL FOR PLAINTIFFS:FARACI LANGE, LLP

BY:STEPHEN G. SCHWARZ, ESQ., OF COUNSEL

28 EAST MAIN STREET

SUITE 1100

ROCHESTER, NY 14614

COUNSEL FOR DEFENDANT:JONES DAY

BY:NANCY MACKIMM, ESQ., OF COUNSEL

717 TEXAS, SUITE 3300

HOUSTON, TX 77002

Ferris D. Lebous, J.

Defendant International Business Machines Corporation ("IBM") moves for an order [*2]granting summary judgment pursuant to CPLR § 3212 in favor of IBM on all private nuisance claims asserted by four of the seven trial plaintiffs.[FN1]

The court heard oral argument between July 9, 2012 and July 18, 2012 on eleven IBM motions. Today, the court has issued five separate Decisions resolving only those motions dealing with legal issues which are referred to, in sequence, as: (1) Negligence; (2) Nuisance; (3) Trespass; (4) Other Chemicals/Other Locations; and (5) Medical Monitoring. This Decision is the second in the sequence of decisions issued today. The court has reserved decision on the remaining motions addressing the testimony of various plaintiffs' experts until after the court holds Frye/Parker hearings thereon.

BACKGROUND

The court will review the facts as pertinent to the four trial plaintiffs alleging nuisance claims.

Thomas H. Ivory is the owner of 1605 Tracy Street in Endicott which he purchased in 1965. In 2003, with Mr. Ivory's consent, IBM installed a ventilation system in his residence to protect against potential vapor intrusion through soils beneath the basement. In 2004, Mr. Ivory accepted IBM's "Property Benefit Plan" in the amount of $10,000 in exchange for a General Release signed on November 15, 2004.

Shawn Ivory Stevens was the owner of 421 South McKinley Avenue in Endicott from April 1999 through August 2009. In 2003, with Ms. Ivory's consent, IBM installed a ventilation system in her residence to protect against potential vapor intrusion through soils beneath the basement. In 2004, Ms. Ivory rejected IBM's offer of the "Property Benefit Plan" payment. Ms. Stevens sold the residence in 2009.

Grace Odom is the sole owner of 1702 East Main Street in Endicott and has resided there since 1983. In 2003, with Ms. Odom's consent, IBM installed a ventilation system in the residence to protect against potential vapor intrusion through soils beneath the basement. In 2004, Ms. Odom rejected IBM's offer of the "Property Benefit Plan" payment.

James Odom is the 22 year old son of Grace Odom. James Odom does not have any legal interest in 1702 East Main Street property, but resided in the residence with his parents.[FN2] James [*3]Odom was 12 or 13 years old when the ventilation system was installed in 2003.

DISCUSSION

A.STANDING

IBM asserts that the nuisance claim of James Odom must be dismissed because he does not have a legal ownership interest in his mother's property and thus lacks standing to bring a nuisance claim. Plaintiffs acknowledge that the New York Court of Appeals has declined to permit recovery for those who do not own or lease the property at issue (Kavanagh v Barber, 131 NY 211 [1892]). However, plaintiffs urge this court to ignore Kavanagh and deem the holding to be antiquated and instead follow other jurisdictions, as well as the Restatement (Second) of Torts, which permit recovery in nuisance for non-owners.

It is undisputed that James Odom does not have any legal ownership interest in his mother's property. It is equally undisputed that the law in New York under Kavanagh is that non-owners lack standing to assert a nuisance claim. It also appears that other jurisdictions and legal treatises recognize a colorable interest of the right of a possessor to recover under a private nuisance cause of action for inconvenience as compared to an owner's right to recover under a private nuisance cause of action for a decrease in property value. Nevertheless, this court is bound by the Court of Appeals decision in Kavanagh. Consequently, this court finds under Kavanagh that James Odom is without standing in relation to his private nuisance claim. Thus, IBM's motion seeking to dismiss the private nuisance claim of James Odom is granted.

B.RELEASE

IBM asserts that the nuisance claim of Thomas H. Ivory is barred because he released his property based claims against IBM by signing a General Release in 2004 in exchange for a payment of $10,000. By way of this argument, IBM attempts to restrict a private nuisance cause of action as solely a property damage based claim exclusive of any damages to personal rights flowing from the same conduct. In IBM's view, there is no damages aspect of a private nuisance action beyond property based damages which Mr. Ivory waived by signing the General Release in exchange for $10,000.

In opposition, plaintiffs assert that by way of Mr. Ivory's private nuisance action he is not seeking damages on account of any physical damage to his home or diminution in its value which he concedes were waived by the terms of this General Release. Rather, Mr. Ivory is seeking damages arising from the violation of his right to the quiet use and enjoyment of his property which he asserts are additional aspects of his private nuisance claim, over and above claims of property damage or diminution in value.

As a starting point, it is well-settled that "[a] nuisance is the actual invasion of interests in land..." (532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280, 292 [2001] [*4][emphasis added]; Haire v Bonelli, Jr., 57 AD3d 1354, 1358 [3rd Dept 2008]).[FN3] Moreover, it is generally accepted that "[n]uisance is a form of tort, but it is not restricted to a single type of tortious conduct. It denotes the wrongful invasion of a legal right or interest. It comprehends not only such invasion of property but of personal legal rights and privileges generally" (Sweet v State of New York, 195 Misc 494, 500 [Ct Cl 1949] [emphasis added]). Thus, the very foundation of a nuisance cause of action is an interference with the use and enjoyment of property which is a personal right or, stated another way, the "annoyance, inconvenience or discomfort to one who has the necessary property interest" (2 NY PJI3d 3:16, at 145 [2012]; Kavanagh, 131 NY 211). While the court acknowledges the Court of Appeals' description in Jensen v General Elec. Co., 82 NY2d 77 (1993), of nuisance as a property damage action, the court finds that description does not negate the damage aspects that also impact a person's interest in the land, e.g., use and enjoyment. In view of the foregoing, the court finds that a nuisance claim is not strictly speaking solely limited to a property damage claim but also incorporates a plaintiff's personal legal rights and/or interests.[FN4]

The court must also examine the language of the General Release itself since "[a] release is a contract that, unless its language is ambiguous, must be interpreted to give effect to the intent of parties as indicated by the language they utilize" (J & A Bayly Constr. Co. v Village of Castleton-on-Hudson, 248 AD2d 766, 767 [3rd Dept 1998]; Ellis v Village of Scotia, 17 AD3d 971 [3rd Dept 2005]). The pertinent language of the General Release is as follows:

[t]he RELEASEE, RELEASEE'S directors, officers, employees, shareholders, heirs, executors, administrators, successors and assigns from all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever relating to damage to, and/or diminution in value [*5]of, any real property, situated in the Town of Union, County of Broome and State of New York, in law, admiralty or equity, which against the RELEASEE, the RELEASOR, RELEASOR'S heirs, executors, administrators, successors and assigns ever had, now have or hereafter can, shall or may have for, upon, or by reason of any contamination, encroachment, pollution, intrusion, infiltration, ventilation or entry by, or discharge, release, drainage, runoff, emission, flow, or seepage of, any vapor, odor, gas, liquid, or matter of any description having any impact on, in, or near real property owned or occupied by the RELEASOR, RELEASOR'S heirs, executors, administrators, successors and assigns, and/or in which the RELEASOR, RELEASOR'S heirs, executors, administrators, successors and assigns now have, have had, or hereafter will have any interest, from the beginning of the world to the day of the date of this RELEASE.

(IBM Ex 28; emphasis added).

In reviewing the plain language of the General Release in this context, the court is mindful that the amount paid under this Release was calculated using either a fixed figure or a percentage of the assessed value of the subject property - clearly tied to the market value of the property. Thus, the court finds that the language "damage to, and/or diminution in value of" clearly relates only to the property damage aspect of any nuisance claim. In view of the foregoing, the court finds that the private nuisance claim of Thomas H. Ivory is not barred by his General Release.

The court will now turn to the arguments on the merits on the private nuisance claims for the remaining trial plaintiffs, namely those of Thomas H. Ivory, Shawn Ivory Stevens, and Grace Odom.

C.SUMMARY JUDGMENT

A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by producing evidentiary proof that demonstrates the absence of any material issue of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).If the moving party meets said burden, then the burden shifts to the opposing party to present evidentiary proof in admissible form that demonstrates the existence of a factual issue (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]).

A plaintiff attempting to recover damages for a private nuisance claim must show:

(1) an interference with plaintiff's right to use and enjoy his/her land; (2) that said interference was substantial in nature; (3) that defendant's conduct was intentional, negligent, reckless or abnormally dangerous;[FN5] (4) that defendant's conduct was unreasonable under all the circumstances; and (5) that said interference was caused by defendant's conduct (Hitchcock v Boyack, 277 AD2d 557, 558 [3rd Dept 2000]; Copart Indus. v Consolidated Edison Co. of NY, 41 NY2d 564, 570 [1977], rearg denied 42 NY2d 1102 [1977]; see also PJI 3:16). [*6]

IBM argues that the undisputed facts disprove any claimed substantial interference with plaintiffs' use and enjoyment rights as a matter of law. Plaintiffs have set forth a litany of quality of life complaints emanating from the existence of the ventilation systems in their homes including the sight, sounds, and maintenance of the ventilation system; the stigma of the system; the fear caused to them and their guests by the threat of contamination; and the overall negative impact on their quality of life. IBM alleges that plaintiffs' so-called quality of life complaints are de minimus and insignificant.

Quite simply, the court is not prepared at this juncture to cast these complaints aside and find as a matter of law that they are not substantial; either alone or taken together. The court finds that the magnitude or lack thereof of the above-referenced interferences with plaintiffs' use and enjoyment of their properties clearly present a factual determination for the jury (Weinberg v Lombardi, 217 AD2d 579 [2nd Dept 1995]; Futerfas v Shultis, 209 AD2d 761 [3rd Dept 1994]; Donnelly v Nicotra, 55 AD3d 868 [2nd Dept 2008]).

IBM also claims that it has established as a matter of law that it did not engage in sufficiently culpable conduct to support any private nuisance claim.[FN6] This court has issued simultaneously herewith a separate Decision addressing IBM's motion for summary judgment on the negligence cause of action and has determined that material questions of fact exist relative to the reasonableness of IBM's conduct including the issue of foreseeability. That determination is applicable here as well. Additionally, the court finds that IBM's continuing course of operation presents a question of fact as to whether any action and/or inaction by IBM equates to intentional conduct that must also be presented to the jury for resolution as well. Thus, the court finds that material questions of fact exist relative to whether IBM engaged in any alleged culpable conduct - negligent and/or intentional - relating to any private nuisance claim.[FN7]

Finally, with respect to damages, IBM argues that plaintiffs have failed to set forth any [*7]damages that are cognizable in a private nuisance claim.[FN8] The court finds that quality of life issues including concepts of discomfort and inconvenience are proper grounds of recovery in an action for nuisance (Dixon v New York Trap Rock Corp., 293 NY 509, 514 [1944]). Accordingly, these plaintiffs may properly seek to recover consequential damages resulting from personal distress and discomfort (2 NY PJI3d 3:16, at 151 [2012]; Taylor v Leardi, 120 AD2d 727 [2nd Dept 1986]).

CONCLUSION

In view of the foregoing, defendant IBM's motion for summary judgment dismissing plaintiffs' claims for nuisance is GRANTED IN PART and DENIED IN PART as follows:

(1)IBM's motion for summary judgment seeking to dismiss the private nuisance claim of James Odom based upon lack of standing is GRANTED;

(2)IBM's motion for summary judgment seeking to dismiss the

private nuisance claim of Thomas H. Ivory based upon the

General Release dated November 15, 2004 is DENIED; and

(3)IBM's motion for summary judgment seeking to dismiss the nuisance claims of Thomas H. Ivory, Shawn Ivory Stevens, and Grace Odom is DENIED.

This constitutes the Decision of the court.

Pursuant to an agreement between the parties outlined to the court in a telephone conference held November 2, 2012, no orders shall issue or be filed in connection with this Decision until after the parties have conferred and submitted a proposed order or orders to the court, with any disputes about such proposed orders to be resolved by the court at a conference to be convened on or about December 12, 2012.

Dated:November 15, 2012

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court Footnotes

Footnote 1:Only four of the seven trial plaintiffs have asserted a private nuisance claim, namely Thomas H. Ivory, Shawn Ivory Stevens, Grace Odom and James Odom. The three remaining trials plaintiffs (Timothy Ivory, Thomas P. Ivory and Tami Ivory Azouri) have not asserted nuisance claims. The eighth trial plaintiff, Emmanuel Odom, passed away on July 21, 2012 and his claims, including a private nuisance action, are in the process of being discontinued and are not addressed herein.

Footnote 2:It is unclear whether or not James Odom still resides in the residence.

Footnote 3:Nuisance differs from trespass in this regard because trespass requires an actual physical invasion of the property (2 NY PJI3d 3:16, at 143-144 [2012]).

Footnote 4:IBM's arguments appear to relate more to the proof of damages to be presented at trial. In Haire, the Third Department stated as follows:

[w]here nuisance arises solely from negligence, there is generally a single wrong which may be characterized as either a nuisance or negligence [citations omitted]. The court may properly submit a single count of negligence to the jury because negligent conduct becomes an element of the nuisance cause of action and the plaintiff can only recover once for the harm suffered regardless of how the cause of action is denominated [citations omitted]

(Haire, 57 AD3d at 1358-1359).

Based on the foregoing, the court envisions the verdict sheet to include only one question on negligence as to any plaintiff who has both a negligence and a nuisance cause of action such as Thomas H. Ivory, although the details of the verdict sheet are best left for another time.

Footnote 5:Plaintiffs do not rely on abnormally dangerous conduct (Transcript, Nuisance, p 44).

Footnote 6:IBM argues that plaintiffs have changed their theory that the actionable nuisance at issue is the vapor intrusion in addition to the ventilation systems. With respect to the pleading issue, the court does not accept IBM's characterization of plaintiffs' arguments as a change in theory. The court accepts plaintiffs' explanation during oral argument that they responded to certain interrogatory questions about cause while other responses were limited to effect (Transcript, Nuisance, pp 30-32). However, even if IBM's description were accurate, the court finds that discovery has been so expansive in this case to allow such a change without prejudice to IBM.

Footnote 7:With respect to IBM's argument that plaintiffs cannot sue for the ventilation system because each plaintiff accepted ownership and responsibility for the systems, the court rejects this argument without further discussion. Suffice it to say, however, that the court finds that the contamination arose on IBM's property in the first instance, not plaintiffs' properties (Waters v McNearney, 8 AD2d 13, 17 [3rd Dept 1959], affd 8 NY2d 808 [1960]).

Footnote 8:Plaintiffs' demand for medical monitoring damages flowing from their nuisance cause of action is addressed in a separate motion Decision issued simultaneously herewith.