Carroll v Radoniqi

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Carroll v Radoniqi 2012 NY Slip Op 32415(U) September 7, 2012 Supreme Court, New York County Docket Number: 110757/10 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. SCANNED ON 912012012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YQRK COUNTY Index Number: 110757/2010 CARROLL, WILLIAM .- INDEX NO. VS. yonow DATE RADONIQI. MAHlR SEQUENCE NUMBER : 008 YOTKIM SEQ. W. QUASH SUBPOENA, FIX CONDITIONS .~. - Upon tw fongolng papon,it h ordmnd that t k m o m k f h FILED NEW YORK COUNTY CLERK'S OFFICE .._....Y...Y..............,,. ",,,..............................."@ C U E DI$PO$ED CHECK As A P P R O m E ...,...................... MOTION is: GWD ~IDLMBD 1. CHECK ONE 2. 3. CHECK IF APPROPRLAE: ................................................ 1 SEtTlJ! Ot3UER 0DO NOT POST U.ORANTU) IN PART OTHER 0SUBHIT ORDER 0FIDJCI,ARYAPPOMWWT REF ¬RENCE [* 2] i f SUPREME COURT OF TEE HTATE OF'NEWYORK VEW YORK COUNTY '4. PART - Index Number : 110757/2010 CARROLL, WILLIAM vs. RADONIQI, MAHIR SEQUENCENUMBER : W5 - SUMMARY JUWMEM Supreme Court Records OnUns Llbrary ,, ..... , ....... , . ...... , ............ , - pepe 1 of 8 ., _I._._II_-__." -.-._-_ . . . -.-----.. [* 3] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART I O -X WILLIAM CARROLL, individually, and derlvatlvdy on behalf of THE CHARLES HOUSE CONDOMINIUM; - - I - " - -- - - IsronlOrdaC index #.: 110767/10 seq. #: 004,005 PI alnttfF, -against- Present: MAHlR RADONlQl and THE CHARLES HOUSE CONDOMINIUM, J.S.C. Defendants. Recitation, as required by CPLR 2219 [a] of the papera consldered In the review of this (these) motion(8): rddasdw Pltf nlm [3124,3126] wBFS afirm, exhe s!p* Def opp Wl BCW aM-hn, MR 3 2 zap. . . . . . /. . . . 1,2 .~ Motton Sen. 006 Def n/m 132121w/QMC alTlrm, MR amd, exhs Pkfoppw/TDBafflrm,WCaffid,exhs~.. J ...................... 3,4 Def reply w/GMC affld, cxhs .................................. 5 Glsche, J.S.C.: Upon the foregoing papem, the decisbn and mder of the wurfis 88 fallows; Plaintlff, William Carroll ("Carroll" or "PlalnW") has commenced this actlon, Individually, and derivatively on behalf of The Charles House Condomlnlum ("CHC"), soundlng In breach of the duty of loyalty and nulsence, against defendante CHC and Mahir Radoniqi (*Radonlql" sometimes "supef), CHC's euperintendent. A prlor motion for summary judgment by defendantCHC was granted,end the case was thereafter conthued against Radoniqf only. Now, before the court, is Radoniqi's motion, pursuant to CPLR 53212, to dismiss plaintiffs aecond muse of actlon for private nulsanca against him. -Page i a i 7- Supreme Court Records OnLlns Llbrary - page 2 of 8 [* 4] Plaintiff opposas'the motion and in a separate sequence move8 to compeldiscovery from Radoniqi. Issue has been joined end the note of imue has not yet been filed. Summary judgment relief is, therefore, avollcrble. CPLR $ 3212; A.D.2d 42 [ l s t Dept. 20011. -;285 Facta and Argumenb Plalntlff is an Owner and shareholder of CHC. The court now consMers whether Radoniqi is entitled to summary judgment on the second cause of action against him. The second cau3e of action conslats of a nuisance claim that Plainttff brought, In hi8 individual capacity, against Radoniql. Carroll alleges thdt Radaniqi caused excesshre amount8 of noise in carrying out the 'unlawful" repair and renovation work within Unlt 12C fo tho Condomlnlum, that the noise lnterfewd wtth the quiet enjoyment of the unit owners on the 1I", and 13" floors,and that Carroll w a particularly affected. Cam11 allqw 12h, ~ that the work was conducted during business hours, for about four months, beginnlng January of 2008. Carroll claims that the annoyance and Inconvenience fronthe repairs to his neighbor's property amount to an actionable private nuisance and he smksdarnagw that include the diminished value of the use and ,occupancyof his unit during the relevant tlme perlad. Carroll sued Radoniqi for damages that Include sum8 for the loss of me of Carroll's unit, Radoniqi claims that there I no evidence that he created an actionable nuisance. s Radoniqi cialms that: [l] use of the renovated property was reasonable, [2] the the evidence does not support an 6bJeutivefindlng of nuisance, [3Jthe tort may not be based soleb on the Carroll's subjective perceptions, [47 single or non-recurrlng amounts of even @xcessiveamounts of nolse cannot comprise an actlonable nuimnce, [SJthe la& o f 4 - Page 2 of 7 - Supreme Court Records O d h 8 Library - pegs 3 of 6 [* 5] permits or approvals for Radoniqi's work doen not give h e to a nuisance cause of action, and 161 Radoniql cannot be liable under nuisance law for.the absence of 8 kttchen In Unit 12C. Flnally, Radoniqi claims that Carroll has nut estBbllshed special damages because he was not constructively evicted from hls property,that Carroll cannot otherwfse proveany compensable damages, and that Carroll lacks standing to assert a nuisance caU8B af action on behalf of otham. Carroll reasserts his olaima In the complaint and argues that Radonlql engaged In "illegal" construction by utilizing 3 reclprocathg saw and rotary sanders. Plaintiff chime that such uae au8e Bigniftcant noise pollution, whlch amounts to a nuisance to Carroll. Furthermore, plalntmclaimsthat pursuant to 3212(f), there remaln questionsof fact 88 the to extent of Radoniqi's construction adkrtly and hia alleged noncomplience wt statutorily ih required noim mitigation policies. Diacuoslon Arraward of summary judgment is appropriate when no issues of fact eXiet Sea CPLR 3212(b);Sun Yau KO v. LIncob Sav, Bank,Q8 A,D.2d Q43 (1st Dapt., 1984), 62 N.Y.2d 938 (1984); Andre v. Porneroy, 35 N.Y.2d 381,362 N.Y.S.2d 131 (1974). On a motion for summary judgment, the proponent bears the Initial burden Of wttlng forth evidentiary facts to prove B pdma facle case that would antitle it to judgment in Is favor, t without the need for a trial, CPLR 5 3212; m d v. NW M d l ~Center,64N.Y,2d l 851 (1985); m v. C h of New York, 49 N.Y.2d 557,582 (1980). Only ifh meets r ~ this burden, will It then shR to the party opposing summary judgment who must then establish the existence ofmaterlal iasues of fact, through evidentiary proof In admissible form, that would require a trial of thls action. Supreme Court Recorda OnLlne Llbrery - page 4 of 8 v. Clhr of New Yo#, supre. If the , [* 6] proponent fails to make out Its prima facie MBB for summary judgment, however, then its motjon must be denled, regardless of the suffkkncy of the opposing papers, &!EQQ ProspashHospI ,68 N.Y.2d 320 (1986); &Me v. Gent&, td 81 N.Y.2d1002 (1993). Preliminarily, the court addresses Radonlql a argument that Carroll lacks atanding to assert a nuisance cause of actlon on behalf of others. Although Radaniqiclaims that Carroll has no standing to bFing this claim8 on behalf of the other tenant ahareholdem. it I clear from the complaint the second caucle of actlon is brought only by Carroll, 88 an s individual, in his own capacity. Thus, there is no need to grant any relief on the basls Of standing on behalf of any other rihareholder tenants. Aprivate nuisance is a continuousor pershtent conditionthat threatenathecomfort and safety of neighboring tenants and whlch la likely to recur. Pornen Holdina CO. v, m,N.Y.3d 117 (2003). A private nulsancs requires a ahowing of an lntentlonal 1 end eubshntial interference with the rlght to uw or enjoyment of land. CmacU&& n s n l l d a t e m CQ.of NY, 4 1 N.Y.2d 564,570 (1877). The law of private nuisanca Involves a balancing of interests. Penons who live I organized communlhs haw to n tolerate some damage, annoyance or lnwnvenlence from bach other, NusJbaum v, u, 311 (1970). 27 N.Y.2d The prevalllng philosophy has been that noise and odors are an inesmpable reallty of urban Ilfefe; indeed, mere annoyance in and of Itself does nat create a nulsance. mnanernent Corn. v, Bank& 18 1 Miac. 86,98 (NY Mun.Ct 1843). m e v V&m, 168 Mlsc 2d 446,452 [Clv Ct lS05Jmv d, 174 Misc 2d 312 [App Term 1993 mv d, 255 AD2d 167 [lst Dept 1098]. A pereon who resides in the center of a large ctty must not expect to be surrounded by the stillneas whlch prevalle In a rural dletrict. No one is entitled - Page 4 of 7 Supreme Court Records OnLine Library - page 5 of 8 [* 7] to absolute quiet in the enjoyment of his property; he may only Insist upon a degree of quletness consistent wlth the standard of comfort pmvaiiing in the localtty in which he dwells." P~ODIR C o m t of on Gershber#v Arkow, 204 Miac 035, 639 [NY Magis Ct 19531 (Internal citations and quotations omitted). In determlnlng whether a defendant's urn of property is 8 nuieance, the court musf weigh the gravlty of the harm to plalnfiff against the utility and necessity for defendant's conduct. m Jownh R e - v. M&n , 4 1 N.Y.2d 738 (1977). The interference must be substantlal,not trifling, materialand actual notfanclfol or sentimental. CO. Of NY , 41 N.Y.2d 584,512 (1877). A plalntiff must, however, Qdn -Ei s o come forward with proof sufficient to dcmomtrafe a triable Issue of fact to avoid eummary judgment. See h u a n v, B a r n , 203 A.D.2d 857,868 (3d Dept 1994). . Radoniqi has established hlsprlme faciecase, the work done to apartment 12C w88 routine, not extraordinary and withln budnew hours. Plaintiff, however, argues that Radoniql'srenovatlon work gave riseto an actionable nuimncesince Radonlqidld not post 8 Construction Noise Mitigation Plan throughout the building. NYC Noise Cod- 28-100, 30-102, s seg. Generally, ordinary repairs and minaralteraffon of the interior of bufldlngq f whlch do not materially affect structural features, do not necessitate bulldlng permb. 19 NYCRR 1203.3.He does not dispute that the noise at Issue was a short-term u m of an efectrlc saw and alectrlc sander (whlch plaintiff did not dfapuh sounds like a vacuum cleaner). ector v B e n m,271 AD 1024 [ZdDept 19471;m T Q W @ r $A - Gibson 18 Mbc. 3d 349,352 (NY Sup Ktng Co 2007);Metro!! k r ! Q& Llfe Inswnce Co v, 187 Mlsc. 458 (App Term 1948) affd, 272 AD 1039,74 NYS2d 910 (1st Dept 7947). There are no reported violations. Here, there I no lndlcatlon that plaintiff was s - Page 6 of 7 - Supreme Court Records OnUne Library - page 6 of 8 [* 8] prohlbfted from using or enjoying their propetty or that defendants exercised unreasonable control over the property. Plaintiffs failure to aupport hl@clalm at thla Juncture with any of Wakrford Ass'& expert testimony or empirical tsvldanca Is fatal. Sea hc. v S a , 73 A.D.3d 817,618 (1st Dept 2010); church v. New York f& Trar&&h&, B of JMUS R Q - 28 AD3d 520,521 (2d Dept.2006); !JXBU burance Co.of North Arnerlm,289 AD.2d 205 (2dDept.2001);Twin Coullt&rnc IirlQ Coin. v, YevQU ,224 A.D.2d 828 (2d Dept.lgQO),aFd!lO N.Y.2d 1000 (1997); ped&J&g&, 82 A.D.2d 250, 264 (Zd Dapt 1083), Plaintiff alleges various vlolatlons of the Noise Code, and claims that further discove~yis neceesary to detmlne what tools defmdent used in the remodeling. However, he already has that Information, and in any event, h knows from hts own e personal knowladge what he heard. Yet he still I unable to demonstrate facta that show s the nolae was at unacmptable levels, rlsing to a private nuloance. His own affldavlt @ bare boned and conclusory. it does not dasorlbe the nolm level, nor I there B ~ ~ I c about s H ' ~ when It occurred. Where a party opposed to aummary judgment contend8 that dlswvery le Incomplete, the court may consider whether the motion ia premature because the Information necessary to fully oppose the motion remalns under the control of the proponent of the motion. CPLR 5 3212 (9;b w i e v. 8afehr Dlmsal S e of Pennsvlv&. I ne,,12 vm A.D.3d 324 (jet Dept. 2004); GlobeI M l mla CDrnJ&JmI& Dept 2006) (Internal citatlons omitted). The court re]& 35 A.D.3d 93 (1st the contentlono that addltlonal discovery from Radoniql Is neded. The mere hope that the padm can uncover useful evldence i an lnslrfficlent reason to postpone conslderatlon of plalntlffs motion, and the s defendants have failed to demonstrate how futther discovery might yield materlal fads that Supreme Cwrt Records OnUne Llbrmy - page 7 of B [* 9] d would warrant the denial of summary judgment at a later time. &glia Y. Bumer Kina COQ,, 88 A.D.3d 986 (2d Dept 2009). Therefore, thls motion 1 not premature although brought s before dlscovery I complete. s Farthe reasonsstated a b o w the defendants motion for summary (motionsequence 00s)I granted and plalntlffs motionto compel disclosure (motion sequence O )ie denied s M as moot. In vlew of this courts prior order (dated October 20,201 1) thls action la flnally resolved by this motion. Conclualon In accordance herewith, it 18 hereby: ORDERED that motion sequence 005, defendant Mahlr Radanlqi s motlon, I s granted 88 to summary judgment dismissing the complalnt against hlm, on the sercond Causa of Action; and It 1 further 9 ORDERED that motion sequence 004,Plaintiff, WIItiarn Carroll s motlon is denied as moot; and it is further h ORDERED that any requeertedrelief not expressly addressed has nonetheless been considered and is hereby denied; and it IB ORDERED this shall constitute the Dated: New York, New York September 7,2012 SEP 12S$P&derd: NEWYON -ctaucsq./ HON -Page 7 of 7 - Supreme Court Recorda OnLlne Library - page 8 of 8 i r I i lb J. GISCHE, J.S.C,

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