Theroux v Resnicow

[*1] Theroux v Resnicow 2023 NY Slip Op 50902(U) Decided on August 28, 2023 Supreme Court, New York County Lebovits, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 28, 2023
Supreme Court, New York County

Justin Theroux, Plaintiff,

against

Norman J. Resnicow, Barbara Resnicow, 71 Washington Place Owners, Inc., and Board of Directors of 71 Washington Place Owners, Inc., Defendants.



Index No. 154642/2017



Pryor Cashman LLP, New York, NY (Eric D. Sherman, Bryan T. Mohler, and Daniel V. Derby of counsel), for plaintiff.

Peter M. Levine, Esq., New York, NY, for defendants Norman J. Resnicow and Barbara Resnicow. Gerald Lebovits, J.

The following e-filed documents, listed by NYSCEF document number (Motion 013) 682, 683, 684, 685, 686, 687, 688, 689, 690, 691, 692, 693, 694, 695, 696, 697, 698, 699, 700, 701, 702, 703, 704, 705, 706, 707, 708, 709, 710, 711, 712, 713, 714, 715, 716, 717, 718, 719, 720, 721, 722, 723, 724, 725, 726, 727, 728, 729, 730, 731, 732, 733, 734, 735, 736, 737, 738, 739, 740, 741, 742, 743, 744, 745, 746, 747, 748, 749, 750, 751, 752, 753, 754, 755, 756, 757, 758, 759, 760, 761, 762, 763, 764, 765, 766, 767, 768, 769, 770, 771, 772, 773, 774, 775, 776, 777, 778, 779, 780, 781, 782, 783, 784, 785, 786, 787, 788, 789, 790, 791, 792, 793, 794, 795, 796, 797, 798, 799, 800, 801, 802, 803, 804, 805, 806, 807, 808, 809, 810, 811, 812, 813, 814, 815, 816, 817, 818, 819, 820, 821, 822, 823, 824, 825, 826, 827, 828, 829, 830, 831, 832, 833, 834, 835, 836, 837, 838, 839, 840, 841, 842, 843, 845, 1034, 1035, 1036, 1037, 1038, 1039, 1040, 1041, 1042, 1043, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1051, 1052, 1053, 1054, 1055, 1056, 1057, 1058, 1059, 1060, 1061, 1062, 1063, 1064, 1065, 1066, 1067, 1068, 1069, 1070, 1071, 1072, 1073, 1074, 1075, 1076, 1077, 1078, 1079, 1083, 1086, 1087, 1117, 1118, 1119, 1120, 1121, 1122, 1123, 1124, 1125, 1126 were read on this motion for PARTIAL SUMMARY JUDGMENT.

The following e-filed documents, listed by NYSCEF document number (Motion 014) 541, 542, 543, 544, 545, 546, 547, 548, 549, 550, 551, 552, 553, 554, 555, 556, 557, 558, 559, 560, 561, [*2]562, 563, 564, 565, 566, 567, 568, 569, 570, 571, 572, 573, 574, 575, 576, 577, 578, 579, 580, 581, 582, 583, 584, 585, 586, 587, 588, 589, 590, 591, 592, 593, 594, 595, 596, 597, 598, 599, 600, 601, 602, 603, 604, 605, 606, 607, 608, 609, 610, 611, 612, 613, 614, 615, 616, 617, 618, 619, 620, 621, 622, 623, 624, 625, 626, 627, 628, 629, 630, 631, 632, 633, 634, 635, 636, 637, 638, 639, 640, 641, 642, 643, 644, 645, 646, 647, 648, 649, 650, 651, 652, 653, 654, 655, 656, 657, 658, 659, 660, 661, 662, 663, 664, 665, 666, 667, 668, 669, 670, 671, 672, 673, 674, 675, 676, 677, 678, 679, 680, 681, 844, 846, 858, 859, 860, 861, 862, 863, 864, 865, 866, 867, 868, 869, 870, 871, 872, 873, 874, 875, 876, 877, 878, 879, 880, 881, 882, 883, 884, 885, 886, 887, 888, 889, 890, 891, 892, 893, 894, 895, 896, 897, 898, 899, 900, 901, 902, 903, 904, 905, 906, 907, 908, 909, 910, 911, 912, 913, 914, 915, 916, 917, 918, 919, 920, 921, 922, 923, 924, 925, 926, 927, 928, 929, 930, 931, 932, 933, 934, 935, 936, 937, 938, 939, 940, 941, 942, 943, 944, 945, 946, 947, 948, 949, 950, 951, 952, 953, 954, 955, 956, 957, 958, 959, 960, 961, 962, 963, 964, 965, 966, 967, 968, 969, 970, 971, 972, 973, 974, 975, 976, 977, 978, 979, 980, 981, 982, 983, 984, 985, 986, 987, 988, 989, 990, 991, 992, 993, 994, 995, 996, 997, 998, 999, 1000, 1001, 1002, 1003, 1004, 1005, 1006, 1007, 1008, 1009, 1010, 1011, 1012, 1013, 1014, 1015, 1016, 1017, 1018, 1019, 1020, 1021, 1022, 1023, 1024, 1025, 1026, 1027, 1028, 1029, 1030, 1031, 1032, 1033, 1080, 1082, 1088, 1089, 1090, 1091, 1092, 1093, 1094, 1095, 1096, 1097, 1098, 1099, 1100, 1101, 1102, 1103, 1104, 1105, 1106, 1107, 1108, 1109, 1110, 1111, 1112, 1113, 1114, 1115, 1127 were read on this motion for SUMMARY JUDGMENT.

The following e-filed documents, listed by NYSCEF document number (Motion 015) 538, 539, 540, 853, 854, 855, 856, 857, 1081, 1116, 1128 were read on this motion to STRIKE JURY DEMAND.

Plaintiff, Justin Theroux, and defendants, Norman Resnicow and Barbara Resnicow, are neighbors in a co-op apartment building. Theroux and the Resnicows have been engaged since 2015 in a bitter, ongoing series of quarrels that led to this action.

Theroux's amended complaint, as supplemented by leave of court during the action, asserts claims for trespass (and an accompanying request for declaratory relief) and for private nuisance, and seeks an award of both compensatory and punitive damages.

In 2019, this court granted Theroux's motion for partial summary judgment on liability with respect to his claims for trespass and a declaratory judgment. (See Theroux v Resnicow, 2019 NY Slip Op 31819[U] [Sup Ct, NY County June 25, 2019].) The Appellate Division, First Department, affirmed this court's trespass-related liability rulings in 2020. (See Theroux v Resnicow, 187 AD3d 654 [1st Dept 2020].)

On motion sequence 013, Theroux now moves for partial summary judgment on liability with respect to his claims for private nuisance against Norman Resnicow—the first and fifth causes of action in the combined amended/supplemental complaint. These claims arise from what Theroux alleges to be a "targeted and malicious years-long harassment campaign" to deprive him of "his right to use and enjoy his property," in response to his refusal to install soundproofing in the floor of his apartment, which is directly above the Resnicows' apartment. (NYSCEF No. 855 at 1.) Theroux also moves for summary judgment dismissing the Resnicows' affirmative defenses and counterclaims. In addition to opposing Theroux's motion, the Resnicows cross-move for summary judgment dismissing Theroux's private-nuisance claims.

On motion sequence 014, the Resnicows move for summary judgment dismissing Theroux's claims for various forms of damages on his trespass and nuisance claims. The Resnicows also move, in the alternative, to preclude Theroux from submitting evidence at trial [*3]with respect to one aspect of his nuisance claims: Fees that Theroux claims he paid his business manager to help him deal with some of Norman Resnicow's alleged nuisance behavior.

On motion sequence 015, the Resnicows moves to dismiss Theroux's demand for a jury trial.

Motion sequences 013, 014, and 015 are consolidated here for disposition.

Theroux's partial-summary-judgment motion (mot seq 013) is granted in part and denied in part. Theroux has established as a matter of law that various aspects of Norman Resnicow's behavior toward him constitute a private nuisance—an intentional, unreasonable, interference with Theroux's use and enjoyment of his apartment. Resnicow's principal argument, that he cannot be held liable for nuisance because all of his conduct at issue was legally permissible, is without merit. The Resnicows' cross-motion to dismiss Theroux's private-nuisance claims is denied.

This court also concludes that Theroux has established as a matter of law that the Resnicows' affirmative defenses should be dismissed. The court reaches a different conclusion, however, with respect to Theroux's request to dismiss the Resnicows' eight remaining counterclaims. Theroux has shown that the Resnicows' claims for damages on two of the counterclaims (each sounding in trespass) should be dismissed in part—compensatory and punitive damages on the third counterclaim, and punitive damages on the fifth counterclaim. Otherwise, the Resnicows have shown that a jury must resolve factual issues remaining on their counterclaims.

The Resnicows' summary-judgment motion (mot seq 014) is largely denied. The Resnicows raise legitimate questions about the extent and basis of Theroux's claimed compensatory damages in trespass and nuisance. But, with one exception, the Resnicows have not established as a matter of law that Theroux is not entitled to any compensatory damages on these claims, as required to obtain summary judgment. (The exception is the amount Theroux paid design professionals with respect to the repair of an exterior balcony and staircase, which this court concludes is not a cognizable form of damages in nuisance on the facts in this case.) That exception aside, a jury must decide the amount of compensatory damages to which Theroux is entitled. The Resnicows also do not show that Theroux's claims for punitive damages, and his claim for attorney fees under 22 NYCRR 130-1.1, fail as a matter of law. And this court is not persuaded that Theroux should be subject to a discovery sanction precluding him from submitting for damages purposes evidence of the fees he paid his business manager, as the Resnicows request.

The Resnicows' motion to strike Theroux's jury demand (mot seq 015) is denied. The Resnicows contend that Theroux waived his right to a jury trial by combining damages claims with a request for a declaratory judgment, which they assert to be equitable relief. But Appellate Division precedent makes clear that whether declaratory relief is legal or equitable for jury-trial purposes depends on the nature of the claims lying behind the request for a declaration: I.e., the claims plaintiff would have asserted absent the availability of the declaratory-judgment device. Here, this court concludes, those claims would seek money damages in trespass and nuisance—classic forms of legal relief that a plaintiff has a right to have determined by a jury.

DISCUSSION

I. Motion Sequence 013

A. The Branch of Theroux's Summary-Judgment Motion Seeking to Hold Norman Resnicow Liable in Private Nuisance

On motion sequence 013, Theroux seeks summary judgment in his favor on liability on his private-nuisance claims against Norman Resnicow (the first and fifth causes of action in the combined amended/supplemental complaint). The Resnicows cross-move for summary judgment dismissing these claims. This branch of Theroux's motion is granted. The Resnicows' cross-motion is denied.

A party moving for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].) Once a party has satisfied its prima facie burden, the burden shifts to the party opposing the summary judgment motion to "produce evidentiary proof in admissible form" to establish the existence of one or more material issues of fact requiring a trial of the action. (Id.)

To make out a private-nuisance claim, a plaintiff must establish "(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 Indust., Inc. v Consol. Edison Co. of New York, Inc., 41 NY2d 564, 570 [1977].)

Acts interfering with a person's property right to use and enjoy land are substantial enough to sustain a claim for private nuisance when they are not only "tangible and appreciable" but also "especially uncomfortable or inconvenient." (Nussbaum v Lacopo, 27 NY2d 311, 315 [1970].) That interference must be the product of "a pattern of continuity or recurrence of objectionable conduct." (Domen Holding Co. v Aranovich, 1 NY3d 117, 124 [2003] [internal quotation marks omitted].) Interference is intentional when one acts to cause such interference, one knows that the interference will result from one's conduct, or one is substantially certain that the interference will result from that conduct. (Copart Indust., 41 NY2d at 571.) To ascertain whether an interference with others' property rights to use and enjoy their land is unreasonable, a court should balance the "the gravity of harm to a plaintiff" against "the social usefulness of a defendant's activity." (Id. at 572.)

Theroux's affidavit in support of this motion identifies eight instances of allegedly retaliatory behavior by Resnicow constituting a nuisance: (1) withdrawing permission for Theroux's renovation contractor to start work at 8:30 a.m.; (2) threatening to cut off access to water on Theroux's roof deck; (3) threatening to invoke the house rule that 80% of floors in the building are covered in carpet; (4) disputing the location of boundary on the shared roof terrace; (5) threatening Theroux with negative public attention; (6) threatening to kill the ivy growing on Theroux's section of the roof; (7) demanding that Theroux replace his vintage radiators because of an alleged history of gas leaks into Resnicow's apartment; and (8) threatening to cut off electrical service to the terrace. (See NYSCEF No. 683 at ¶ 27-36.) Theroux further alleges other, later acts by Resnicow that allegedly constitute a nuisance: Pressing the boundary dispute and starting another dispute over Theroux's outdoor balcony and stairs, thereby delaying Theroux's deck construction. (See NYSCEF No. 683 at ¶ 46.)

In Theroux's supplemental amended complaint (filed in December 2021), he alleges five categories of Resnicow's conduct since the start of this action that also allegedly constitute a nuisance: (i) Continuing to press the boundary dispute; (ii) using the media to harass Theroux and infringe on his privacy; (iii) engaging in "repeated instances of obsessive, peeping-Tom like conduct"; (iv) making "repeated baseless accusations" against Theroux to the co-op board and others; and (v) subjecting Theroux to "the recurring sounds of domestic abuse emanating from [*4]Apartment 1A."[FN1] (NYSCEF No. 802 at ¶ 197.)

Resnicow asserts that these various actions, taken together, do not support a private-nuisance claim, because each one is insufficient on its own to constitute a nuisance: "An admixture of inadequate accuations does not by some alchemy coalesce then anneal into an adequate nuisance claim."[FN2] (NYSCEF No. 1039 at 7, citing Tzifil Realty Corp. v Rodriguez, 2019 NY Slip Op 52144[U], at *1 [Civ Ct, Kings County Dec. 3, 2019], affd 2021 NY Slip Op 51162[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists].) Resnicow's use of Tzifil Realty is unpersuasive. The motion court in that case cites no authority for the proposition on which Resnicow relies. And that proposition, taken at face value, runs contrary to the basic character of a nuisance claim as based on a "pattern of continuity or recurrence of objectionable conduct."[FN3] (Domen Holding Co. v Aranovich, 1 NY3d 117, 124 [2003] [emphasis added; internal quotation marks omitted]; accord Chelsea 18 Partners, LP v Sheck Yee Mak, 90 AD3d 38, 38 [1st Dept 2011] [holding that plaintiff had stated a private-nuisance cause of action based on allegations of the defendants' "campaign of premeditated and malicious harassment"]; CHI-AM Realty, Inc. v Guddahl, 7 Misc 3d 54, 55-56 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2005] [considering "totality of circumstances" in evaluating whether landlord was permitted to evict tenant for causing a nuisance], affd 33 AD2d 911 [2d Dept 2006].)

Resnicow is incorrect in asserting that each act of which Theroux complains must on its own support a nuisance cause of action. This court concludes that the conduct by Resnicow at [*5]issue, considered as a whole, constitutes a private nuisance as a matter of law. As a corollary, there is no merit to Resnicow's argument that summary judgment should be granted dismissing Theroux's private-nuisance claims.

1. Whether Resnicow's course of conduct was intentional

Theroux's motion papers establish, prima facie, that Resnicow acted with the knowledge, or substantial certainty, that his actions would interfere with Theroux's use and enjoyment of his property, as required to satisfy the intentionality requirement for private-nuisance claims.

For instance, Resnicow wrote in an email that when Theroux calculated the "out-of-pocket hard costs" of their dispute combined with the "value of all the soft costs" Theroux suffered, Theroux would come to realize that it would likely have ended up costing him less simply to install the soundproofing. (NYSCEF No. 696 at 1.) Resnicow specifically highlighted several costs to Theroux, including the cost of installing new water and electrical lines, paying Theroux's professionals, and buying rugs. He also mentioned the cost of lost terrace square footage to Theroux, the cost of Theroux's contractor's lost half hour of work each morning, and Theroux's loss of enjoyment of his wood floors from Resnicow's enforcement of the co-op's 80%-carpeting rule. (Id.)

In another email Resnicow wrote, responding to a letter from one of Theroux's lawyers, he predicted that his dispute with Theroux will "further penetrate into [Theroux's] family, his quality of life with his wife, and his apartment value and whatever use they make of their apartment." (NYSCEF No. 693 at 3.) And in an email about the boundary dispute between the parties, he wrote that after being "motivated by this mistreatment" (by Theroux) "to bother to check" the location of the boundary line, "the results are not happy for the 2A/B owner couple." (NYSCEF No. 692 at 1.) Theroux has also introduced evidence of Resnicow's repeated trespasses and related intrusions on Theroux's side of the shared roof terrace (including after dark), supported by photographs and videos. (See NYSCEF No. 683 at ¶¶ 101-110, 113-119.)

With respect to the domestic disturbances on which Theroux relies, he has introduced evidence supporting a conclusion that Norman Resnicow's verbal outbursts toward Barbara Resnicow are intentional for private-nuisance purposes because they continued after Resnicow was put on notice that his actions were disturbing Theroux and other building residents. (NYSCEF No. 683 at ¶¶ 132-133.) Theroux's affidavit establishes, prima facie, that those outbursts continued after the co-op board notified Resnicow in writing in February 2019 that it had received complaints from residents "of disturbing notices coming from your apartment," including "[l]oud yelling, cursing and fighting language," in violation of the co-op's rules. (See id. at ¶¶ 134-144, citing NYSCEF No. 766 [co-op letter to the Resnicows]; NYSCEF Nos. 769-781, 79-794 [recordings].) Indeed, this conduct, and other actions by Resnicow, led the co-op to bring an action in February 2022 to terminate their proprietary lease.[FN4] (See NYSCEF No. 782 at 4-5 ¶ 14 [b]-[e], [i]-[j] [complaint].)

Resnicow's papers on this motion do not respond to Theroux's prima facie showing with evidence that would present a material issue of fact on this prong of the nuisance inquiry.

2. Whether Resnicow's course of conduct was unreasonable

Theroux has also made out a prima facie showing that Resnicow's conduct was [*6]unreasonable for private-nuisance purposes.

Theroux has submitted an email from Resnicow stating that had Theroux's advisors counseled Theroux to install the soundproofing material in his floors, "none of these additional matters would have come up." (NYSCEF No. 698.) Theroux has submitted another email from Resnicow indicating that he started the dispute over the terrace boundary line to retaliate for what he perceived to be Theroux's unneighborly behavior. (See NYSCEF No. 692 at 1.) Resnicow's repeated and documented trespasses and intrusions on Theroux's property and privacy appear to have had no purpose other than to perpetuate (and exacerbate) the parties' disputes over the boundary line and Theroux's roof deck. (See NYSCEF No. 683 at ¶¶ 101-110, 113-119.)

The retributive nature of the actions by Resnicow that injured Theroux—and the lack of non-retributive benefits from those actions—undermines the "utility and necessity" of that conduct for nuisance-liability balancing purposes. (See Board of Managers of the Residence on Madison Condominium v Michael Aryeh, 2011 NY Slip Op. 33115[U], at *1, *3 [Sup Ct, NY County Nov. 28, 2011].) The audible outbursts by Resnicow at Barbara Resnicow, as described in Theroux's affidavit (id. at ¶¶ 134-144), have, if anything, negative social benefit. And that is true notwithstanding the absence of any retributive intent toward Theroux. (See NYSCEF No. 1039 at 25-26 [Resnicow mem. of law].)

Given that Resnicow's conduct had little or no social utility, and that the harm to Theroux has been more than nominal, Resnicow has acted unreasonably within the meaning of the nuisance inquiry. (See Little Joseph Realty, Inc. v Town of Babylon, 41 NY2d 738, 744-745 [1977] [explaining that a nuisance claim lies if "the gravity of harm to a plaintiff should be found to outweigh the social usefulness of defendant's activity"].)

Norman Resnicow contends that the motives behind his behavior are irrelevant because "a lawful act is not made unlawful because there is a malicious and reprehensible purpose behind it." (NYSCEF No. 1039 at 15.) But Carroll Bldg. Corp. v Louis Greenberg Plumbing Supplies, the decision he cites for that proposition, holds only that asserting a legally permissible claim out of bad or malicious motives does not constitute the tort of abuse of process—not that a party's motives are necessarily irrelevant for all purposes. (See 216 AD 268, 269-270 [2d Dept 1926]; cf. Matter of Gordon v Marrone, 202 AD2d 104, 109-110 [2d Dept 1994] [affirming award of sanctions made under 22 NYCRR 130-1.1 based on a finding that petitioner had brought a colorable claim for the improper purpose of retribution and harassment].) And conduct that is legally permissible may still be actionable in private nuisance if it unreasonably interferes with another's use and enjoyment of property, relative to the social usefulness of the conduct. (See Waters v McNearney, 8 AD2d 13, 17 [3d Dept 1959], affd 8 NY2d 808 [1960]; accord Copart Indus., 41 NY2d at 572.)

Resnicow similarly relies on the Court of Appeals's 1878 decision in Phelps v Nowlen to argue that the boundary dispute cannot support Theroux's nuisance claim, because "the assertion of a legitimate legal right, even if inspired by a malicious motive, cannot transmute into a tort." (NYSCEF No. 1039 at 17, citing 72 NY 39 [1878].) Phelps did not, however, involve a party commencing litigation or otherwise asserting a legal claim. Rather, it concerned a property owner who undertook excavation on his own property in a way that would affect an underground spring's supply of water to the adjacent property. (See 72 NY at 40-41.) And Phelps held at most that actions undertaken on one's own property that are not otherwise impermissible or a nuisance do not become legally objectionable merely because those acts are undertaken out of malicious [*7]motives. (See id. at 43-44.) That holding does not undermine Theroux's claim that Resnicow's actions constitute a private nuisance under the modern utility-balancing framework for nuisance claims. (See Little Joseph Realty, 41 NY2d 744-745.)

Theroux has established as a matter of law that Resnicow's instigation of the boundary dispute was unreasonable, because it harmed Theroux's use and enjoyment of his property while working no social benefit. Indeed, this court's decision in Theroux's favor on the boundary dispute rested in part on extrinsic evidence showing that the Resnicows themselves had accepted Theroux's view of the location of the boundary line for more than a decade after they moved into their apartment. (See 2019 NY Slip Op 31819[U], at *4 [weighing extrinsic evidence], affd 187 AD3d at 655 [same].) And Resnicow's own emails reflect that he first disputed the boundary line in 2015 out of spite and a desire for retribution (see NYSCEF No. 692 at 1)—benefitting no one other than Resnicow himself.

3. Whether Resnicow's Conduct Substantially Interfered with Theroux's Use and Enjoyment of His Property

Theroux has also established prima facie that Resnicow's conduct substantially interfered with his use and enjoyment of his property.

Theroux outlines various instances of Resnicow's conduct to demonstrate that no issue of material fact exists regarding whether his interference was substantial, real, and noticeable. Theroux relies, for example, on Resnicow's instigation of the boundary dispute, arguing that it delayed building his roof deck.[FN5] (See NYSCEF No. 843 at 9.) Theroux provides evidence of Resnicow's emails to the board expressly asking it to reject Theroux's proposals for construction.[FN6] (See NYSCEF No. 700; NYSCEF No. 843 at 9.) He points to Resnicow's interactions with the media, which resulted in Theroux's apartment and possessions being [*8]publicized in the tabloids and an increased paparazzi presence outside his home. (See NYSCEF No. 683 at 19-22.) He also represents that Resnicow's "volcanic rage," reflected in numerous outbursts toward his wife, disturbed the peace of all the residents in the co-op. (NYSCEF No. 683 at 33-35.) Resnicow's behavior toward Theroux and other co-op residents is relevant, as repeated verbal abuse or threats may be a basis for a nuisance claim. (See Domen Holding, 1 NY3d at 123-124 [finding that allegations of repeated verbal abuse of other tenants by defendant's guest constitute a basis for a nuisance claim].)[FN7]

Resnicow contends, again, that he cannot be liable for private nuisance because each of his actions was a legal exercise of his rights. (See NYSCEF No. 1039 at 7.) Resnicow's interpretation of private-nuisance liability is incorrect. Whether or not a given defendant's conduct is lawful, nuisance liability will arise if that conduct, the manner in which it is carried out, or its necessary consequences constitute a substantial interference with the plaintiff's use and enjoyment of plaintiff's property. (Waters v McNearney, 8 AD2d 13, 16-17 [3d Dept 1959], citing McCarty v Natural Carbonic Gas Co., 189 NY 40, 49 [1907]; accord Broxmeyer v. United Capital Corp., 79 AD3d 780, 783 [2d Dept 2010] [reversing grant of summary judgment dismissing private-nuisance claim based on noise from HVAC units, notwithstanding that the units at issue complied with the applicable municipal noise ordinance].)

With respect to whether Resnicow's various trespasses on Theroux's property support a private-nuisance claim, he contends that those intrusions were too short and sporadic to be a nuisance. (See NYSCEF No. 1039 at 20-21.) But the question is not whether those trespasses themselves constituted a freestanding nuisance, but whether they interfered with Theroux's use and enjoyment of his property as one piece of a broader course of objectionable and unreasonable conduct. As Theroux notes, the same acts can subject a defendant to liability for both trespass and nuisance. (See Gellman, 24 AD3d at 417-418.) Similarly, Resnicow's audible outbursts at his wife—some of which led to calls to the police—support Theroux's claim that Resnicow's overall pattern of behavior constituted a private nuisance, even if those outbursts were, as Resnicow argues (NYSCEF No. 1039 at 25), too isolated and sporadic to constitute a nuisance in themselves.

Beyond the harms identified in Theroux's moving papers, Resnicow himself testified at his deposition that Theroux lost "the use of his apartment," and that "what set things off" was Theroux's "unwillingness to deal with the sound issue, which then led to . . . the dispute" between them. (NYSCEF No. 807 at 844-845.) To defeat Theroux's request for summary judgment on the nuisance claim, Resnicow must provide evidence that triable issues of fact nonetheless remain. He has not done so. It also necessarily follows that the Resnicows have not established as a matter of law that Theroux's nuisance claim is subject to dismissal.

This court concludes, therefore, that Theroux has established as a matter of law that Resnicow's pattern of objectionable conduct constituted a private nuisance. (See Beuhler 1992 [*9]Family Tr. v Longo, 63 Misc 3d 508, 516 [Civ Ct, Kings County 2019] [finding ample evidence of nuisance when a party engaged "over a period of time in a course of conduct and pattern of out of control behavior . . . . designed to effectively harass, annoy, and threaten her neighbors"].)

B. The Branch of Theroux's Summary-Judgment Motion Seeking to Dismiss the Resnicows' Affirmative Defenses

Theroux also seeks dismissal of the nine affirmative defenses asserted in the Resnicows' amended answer; and the six affirmative defenses asserted in the Resnicows' amended answer responding to Theroux's supplemental complaint.[FN8] This branch of Theroux's motion is granted.

1. The Nine Initial Affirmative Defenses

The court begins by addressing the initial set of nine affirmative defenses. The first of these defenses, that Theroux has failed to state a cause of action, lacks merit. As discussed above, Theroux has not only stated causes of action, but he has also shown entitlement to summary judgment on liability.

The second affirmative defense, that Theroux's claims are barred by the statute of limitations, is meritless as well. The alleged nuisance conduct began in 2015. Theroux brought this action on May 19, 2017, well within CPLR 214 (4)'s three-year limitations period for injury to property. (NYSCEF No. 855 at 1.) With respect to Theroux's nuisance claims based on alleged actions by defendants that occurred after the start of this action, those claims are timely under the continuing-wrong doctrine: The claims involve continuing patterns of allegedly wrongful conduct and allege harm that cannot be "'exclusively traced to the day when the original objectionable act was committed.'" (Webster Golf Club, Inc. v Monroe County Water Auth., 2023 NY Slip Op 04280, at *3 [4th Dept Aug. 11, 2023] [collecting cases], quoting Capruso v Village of Kings Point, 23 NY3d 631, 639 [2014].)

The fifth affirmative defense, that Theroux's nuisance claims are barred by his own culpable conduct, fails. This affirmative defense requires a showing that the party against whom the defense is applied is "guilty of immoral unconscionable conduct and even then only when the conduct relied on is directly related to the subject matter in litigation and the party seeking to invoke the doctrine was injured by such conduct." (Kopsidas v Krokos, 294 AD2d 406, 407 [2d Dept 2002] [internal quotation marks omitted].) The Resnicows have not made out this showing.

The ninth affirmative defense is that the parties' previous friendly relations disprove Theroux's claim that the Resnicows continuously harassed him. But the proffered "friendly" interactions with Theroux (see NYSCEF No. 9 at 36) do not contradict, let alone undermine, the allegations on which he bases his private-nuisance claims.

The third affirmative defense (based on the statute of frauds), fourth affirmative defense (documentary evidence), sixth affirmative defense (Theroux's claims are barred by illegality), seventh affirmative defense (the Resnicows' actions are justified by law), and eighth defense (Theroux cannot assert an adverse-possession claim) are dismissed as conclusory and unsupported by factual allegations, unresponsive to the claims that Theroux is asserting in the action, or both.

2. The Six Additional Affirmative Defenses

Also dismissed are the six additional affirmative defenses raised in the Resnicows' amended verified answer to the supplemental complaint.

The first two affirmative defenses (failure to state a cause of action and the statute of limitations), and the fourth and sixth affirmative defenses (Theroux's claims are barred by culpable conduct, and the Resnicows' actions were legally justified), are addressed above. The third affirmative defense (lack of standing) is meritless: Theroux's allegation that he has suffered monetary damages due to the Resnicows' behavior suffices to establish standing. (See Caprer v Nussbaum, 36 AD3d 176, 182 [2d Dept 2006].) The fifth cause of action (failure to mitigate damages) is without merit. Theroux has no affirmative duty to mitigate damages arising from Norman Resnicow's nuisance behavior. (See Kane v SDM Enters., Inc., 125 AD3d 939, 940 [2d Dept 2015] [explaining that no duty exists to mitigate damages resulting from intentional conduct], citing Den Norske Ameriekalinje Actiesselskabet v Sun Print. & Publ. Assn., 226 NY 1, 9-10 [1919].)

C. The Branch of Theroux's Summary-Judgment Motion Seeking to Dismiss the Resnicows' Counterclaims

Theroux moves to dismiss the eight counterclaims (numbered two through nine) asserted in the Resnicows' answer to Theroux's supplemental complaint, filed in 2021.[FN9] (See NYSCEF no. 518 at 6-21 [alleging counterclaims].) This branch of Theroux's motion is granted only to the extent that the Resnicows' claim for monetary relief on their third counterclaim (sounding in trespass) is limited to nominal damages, and the Resnicows' claim for punitive damages on their fifth counterclaim is dismissed. Theroux's request for dismissal of the Resnicows' counterclaims is otherwise denied.

1. The second and ninth counterclaims

The Resnicows' second and ninth counterclaims assert causes of action for prima facie tort. Prima facie tort requires proof of the following elements: "(1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful." (Freihofer v Hearst Corp., 65 NY2d 135, 142-143 [1985].) One cannot recover on a claim of prima facie tort "unless malevolence is the sole motive for defendant's otherwise lawful act or, in [other words], unless defendant acts from disinterested malevolence." (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333 [1983] [internal quotation marks omitted].)

The second counterclaim arises from Theroux's filing a request for predetermination in June 2020 with the City Department of Buildings (DOB). (NYSCEF No. 803 at ¶ 248.) The request sought to establish and resulted in a determination by DOB that there was no legal egress from Apartment 1A, Resnicow's residence, to the roof area (NYSCEF No. 803 at ¶ 242.) The Resnicows argues that Theroux's DOB filing was intentionally misleading, and was brought not for Theroux's benefit but solely to harm the Resnicows. (Id. at 249-250.) The ninth counterclaim is based on Theroux's installation of garbage-bag black plastic on the balusters of his stairs and at the north parapet of the roof. The Resnicows claim that Theroux intentionally wrapped the balusters to harm the Resnicows by ruining the view from two of their bedrooms and [*10]diminishing the value of their apartment. (NYSCEF No. 803 at ¶¶ 316-344.)

This court is skeptical, given the evidence discussed above indicating that Norman Resnicow used his access to the roof to harass Theroux, that Theroux's DOB filing trying to cut off that access was motivated solely by hostility toward the Resnicows. For similar reasons, Theroux's claim that he wrapped the balusters in plastic out of a desire to protect his own privacy (rather than solely to harm the Resnicows) is plausible. That said, this court lacks a basis at this stage of the action to determine these issues as a matter of law—particularly since doing so would entail this court's making credibility findings, which are instead the jury's proper province.

The branch of Theroux's motion seeking summary judgment dismissing the second and ninth counterclaims is denied.

2. The third and fourth counterclaims

The third and fourth counterclaims sound in trespass. These counterclaims arise from what the Resnicows claim to be Theroux's repeated trespasses on the Resnicows' terrace space. In particular, the Resnicows allege that Theroux has placed on his deck a large picnic umbrella that, when fully opened, sometimes extends some two feet over the boundary line onto the Resnicows' side of the shared roof terrace, and sometimes extends in the other direction over the Resnicows' ground-floor terrace. (See NYSCEF No. 518 at ¶¶ 256-263 [amended answer]; NYSCEF Nos. 521-524 [photographs].) On the third counterclaim, the Resnicows seek compensatory and punitive damages; on the fourth counterclaim, they seek injunctive relief.

To trespass, one must intentionally enter "the land of another without permission." (MacArthur Props., LLC v Metropolitan Transp. Auth., 2017 NY Slip Op 52012[U], at *2, *11 [Sup Ct, NY County June 2, 2017].) To enter intentionally, in the case of trespass, one "must intend the act which amounts to or produces the unlawful invasion, and the intrusion must at least be the immediate or inevitable consequence of what he willfully does, or which he does so negligently as to amount to willfulness." (Phillips v Sun Oil Co., 307 NY 328, 331 [1954].)

The Resnicows have sufficiently alleged that Theroux's repeated opening of the umbrella to its full extension, in a way that extends onto the Resnicows' property, is intentional, and that it has occurred without the Resnicows' permission. In seeking summary judgment dismissing these counterclaims, Theroux argues only that no trespass claim will lie because any intrusion on the Resnicows' property is de minimis. (NYSCEF No. 843 at 21; NYSCEF No. 1117 at 35.) This argument fails. (See Standard Realty Assocs., Inc. v Chelsea Gardens Corp., 105 AD3d 510, 510 [1st Dept 2013] ["An invasion of another's property or airspace need not be more than de minimis in order to constitute a trespass."]; accord Shrage v Con Edison Co., 216 AD3d 1023, 1025-1026 [2d Dept 2023] [same].)

Theroux's request for summary judgment dismissing the Resnicows' fourth counterclaim, for injunctive relief relating to the picnic umbrella, is denied. (See Danchak v Tuzzolino, 195 AD2d 936, 937 [3d Dept 1993] [holding that permanent injunctive relief may be an appropriate form of relief "to prevent repeated or continuing trespass even if the injury or damages are minimal"].)[FN10] A permanent injunction may properly be withheld in this context if the irreparable [*11]harm from the continuing trespass does not outweigh the injury to the trespasser that would result from granting the injunction. (See Parry, 79 AD3d at 715; Danchak, 195 AD2d at 937-938.) But Theroux has not introduced on this motion evidence relevant to that inquiry.

With respect to the third counterclaim, for compensatory and punitive damages, the Resnicows have not specifically alleged any way in which the value of their property has been impaired by the alleged picnic-umbrella trespasses, or any way in which Theroux has gained monetarily from those trespasses, as required to obtain more than nominal damages. (See Parry v Murphy, 79 AD3d 713, 716 [2d Dept 2010] [diminishment in property value]; Sakele Brothers, LLC v Safdie, 302 AD2d 20, 27 [1st Dept 2002] [monetary gain derived from trespasses].) Nor have the Resnicows alleged facts that might meet the high threshold for an award of punitive damages related to the trespassory umbrella. (See Shrage, 216 AD3d at 1026 [affirming denial of punitive damages].) Theroux's request for summary judgment dismissing the third counterclaim for damages is therefore granted with respect to any claim for monetary relief exceeding nominal damages. (See id. [holding that absent a showing of actual injury, plaintiffs could recover "nominal damages in the sum of $1"].)

3. The fifth and sixth counterclaims

The fifth and sixth counterclaims allege that Theroux's rooftop drainage system directs water from Theroux's side of the roof terrace to the Resnicows' side (including around the Resnicows' skylights), leading to the spread of objectionable algae, lichen, and moss on the Resnicows' portion of the roof. (NYSCEF No. 518 at ¶¶ 275-294; NYSCEF Nos. 525-527 [photographs].) The Resnicows acknowledge that the terrace's sole drain is located on the Resnicows' side of the terrace. (Id. at ¶ 276.) They allege, though, that Theroux's drainage system, and Theroux's watering system for his plants, direct water run-off to other parts of the Resnicows' terrace, not merely toward the drain. (Id. at ¶¶ 276-281.) And they request injunctive relief restricting Theroux "from directing water onto the Resnicow portion of the second-floor roof terrace other than along the shortest north-to-south distance from the eastern border of Theroux's portion towards the sole drain at the southeast corner of the Resnicows' portion." (Id. at ¶ 293.)

In seeking dismissal of the fifth counterclaim, Theroux argues that because the roof-terrace drain is on the Resnicows' side of the terrace, the entry of water and soil onto that part of the terrace is not "without permission," as required for a trespass claim. (NYSCEF No. 843 at 21.) But as discussed above, the Resnicows accept Theroux's right to direct water runoff toward that drain; their request for monetary and injunctive relief is instead based on Theroux's alleged directing of water runoff toward other parts of the terrace for which no permission has been granted.

Theroux also contends that the Resnicows have acknowledged that soil and other debris on their part of the terrace have multiple sources, including "multiple balconies and terraces above and two building roofs high above." (Id.) As a result, he argues, the Resnicows cannot show that he should be held liable for any resulting trespasses. (Id.) At most, though, the acknowledgment on which Theroux relies might establish that multiple individuals are responsible for the conditions of which the Resnicows complain—not that Theroux lacks any responsibility, as required to obtain summary judgment in his favor. Similarly, Theroux argues [*12]that "to the extent" any water and soil runoff onto the Resnicows' terrace is "due to roof design or defects," the co-op, not himself, is responsible. (Id. at 21-22.) But Theroux does not provide evidence that the runoff is the result of roof-related defects for which the co-op bears sole responsibility.

Theroux's motion for summary judgment dismissing the fifth counterclaim is denied with respect to the Resnicows' request for compensatory damages. This court agrees with Theroux that the Resnicows have not raised an issue of fact about whether they could also recover punitive damages; that aspect of the fifth counterclaim is dismissed.

On the sixth counterclaim, Theroux argues only that injunctive relief should be denied because the Resnicows have not alleged any irreparable injury. (NYSCEF No. 843 at 22; NYSCEF No. 1117 at 36.) But, as noted above, permanent injunctive relief may be an appropriate remedy for a repeated or continuing trespass. (Danchak, 195 AD2d at 937; accord P360 Spaces LLC v Orlando, 160 AD3d 561, 562 [1st Dept 2018]; Di Marzo v Fast Trak Structures, Inc., 298 AD2d 909, 911 [4th Dept 2002].) And, as with the fourth counterclaim, Theroux has not tried to show that permanent injunctive relief would be inappropriate as a matter of law with respect to the water-drainage conduct of which the Resnicows complain.

4. The seventh and eighth counterclaims

The Resnicows' seventh counterclaim alleges that Theroux is liable for nuisance for having installed floodlights that run along the boundary line of the parties' shared rooftop terrace. These floodlights, the Resnicows contend , radiate intensely into their windows, infringing on their privacy and harming the use and enjoyment of their property. (See NYSCEF 518 at ¶¶ 294-309.) The Resnicows seek compensatory and punitive damages on this counterclaim. On the eighth counterclaim, the Resnicows seek injunctive relief related to these floodlights.

In seeking dismissal of the seventh counterclaim, Theroux argues that installing the floodlights was not unreasonable, because he did so to protect his home and privacy after Resnicow disclosed the location of his apartment to tabloids. (NYSCEF No. 843 at 22.) But the Resnicows have alleged that Theroux's floodlights are not directed only toward Theroux's portion of the roof terrace (where the lights might deter or expose intruders on his privacy), but also illuminate the Resnicows' apartment at night and into the first hours of daylight.

In these circumstances, Theroux has not established as a matter of law that the social usefulness of his actions in installing the floodlights outweigh the harm to the Resnicows from the floodlights. (See Copart Indust., 41 NY2d at 572.) Theroux's motion for summary judgment dismissing the seventh counterclaim is denied. Theroux also has not shown as a matter of law that the Resnicows' eighth counterclaim, for injunctive relief related to the floodlights, is unwarranted.[FN11] (See Gellman, 24 AD3d at 417-418 [reversing denial of permanent injunctive relief as remedy for nuisance].)

II. Motion Sequence 014

A. The Branch of the Resnicows' Motion Seeking to Dismiss Theroux's Damages Claims

The Resnicows move for summary judgment dismissing Theroux's claims for compensatory and punitive damages on his private-nuisance and trespass claims. The motion is granted in part and denied in part.

1. Theroux's claim for compensatory damages for the loss of the use and enjoyment of his property due to nuisance

To prevail on summary judgment, the moving party must establish that it is entitled to judgment as a matter of law on its claim or defense and that no material issues of fact remain. (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].) In seeking dismissal of Theroux's request for private-nuisance damages due to the loss of use and enjoyment of his property, the Resnicows argue principally that Theroux has not established a causal connection between the nuisance and those claimed damages. (See NYSCEF No. 546 at 6-7, 9; NYSCEF No. 1097 at 7.) But it is the Resnicows' burden, as the moving party, to establish the absence of that causal connection; it is not sufficient merely to point to gaps in Theroux's proof that a connection exists. (Nick's Garage, Inc. v Geico Indem. Co., 165 AD3d 1621, 1622 [4th Dept 2018]; accord Torres v Merrill Lynch Purchasing, 95 AD3d 741, 742 [1st Dept 2012].)

In any event, Theroux has introduced sufficient evidence that the Resnicows' conduct caused him injury to create a material issue of fact warranting trial.

Thus with respect to the boundary dispute between the parties, Theroux has submitted evidence that Norman Resnicow's threatening emails to the board from 2016-2017 and his initiation of the boundary dispute in 2015 caused the delay in the re-installation of Theroux's roof deck. Theroux highlights multiple emails in which Resnicow urged the board to reject Theroux's deck plans, implicitly threatened that the co-op would become involved in litigation if it approved his plans, and stated that the co-op was legally compelled to reject the deck plans. (NYSCEF No. 858 at 9.)

Theroux also points to Norman Resnicow's statement in an email to the co-op board that approval for a deck going beyond the Resnicows' claimed boundary line should be withheld until after a court declares the boundary or the parties agree to the boundary in settlement. (NYSCEF No. 858 at 9; NYSCEF No. 878.) Theroux has introduced testimony from Timothy Walch, a former board member, that Norman Resnicow's involvement with the roof-deck plans extended the approval process for the deck by a year. (NYSCEF No. 858 at 10.) And Theroux offers evidence that would contradict Resnicow's assertion that he did not cause a delay in the balcony and stair removal, such as a December 2018 email from Resnicow in which he demanded that leaks in his bedroom be addressed first before any removal on the staircase was undertaken. (NYSCEF No. 858 at 11.)

As the Resnicows correctly point out, this evidence does not prove that Norman Resnicow's conduct caused harm to Theroux sounding in nuisance for which Theroux may recover compensatory damages. But Theroux has shown that resolving that question should be left for the jury at trial, rather than resolved now by this court.

2. Theroux's claim for compensatory damages for emotional distress due to nuisance

The Resnicows also seek summary judgment dismissing Theroux's claim for emotional-distress damages on his nuisance claim. Their summary-judgment motion on this point is denied.

It is undisputed that a plaintiff may recover damages for discomfort and inconvenience resulting from a disturbance to real property that constitutes a nuisance. (See Liberman v Cayre Synergy 73rd LLC, 108 AD3d 426, 428 [1st Dept 2013].) The Resnicows argue that because the [*13]nature of the disturbance to property claimed by Theroux falls short of the disturbances established in some cases in which plaintiffs were able to recover emotional-distress damages, Theroux may not recover those damages here. (See NYSCEF No. 546 at 20, citing Dixon v New York Trap Rock Corp., 293 NY 509, 514 [1944], and Taylor v Leardi, 120 AD2d 727, 728 [2d Dept 1986].) But Dixon and Taylor held only that the degree of disturbance established by the plaintiffs in those cases was sufficient to warrant damages—not that it was necessary. Additionally, those decisions addressed judgments rendered following trial—not rulings made on motions for summary judgment.[FN12] (See Dixon, 293 NY at 514; Taylor, 120 AD2d at 727.)

The Resnicows also rely on the Appellate Division's decision in Graber v Bachman (27 AD3d 986, 987-988 [3d Dept 2006]) for the proposition that Theroux was required to submit much more detailed, specific evidence to support his claim for emotional-distress damages. But Graber did not address the showing required to obtain emotional-distress damages for private nuisance, but rather the showing needed to establish a defendant's liability for negligent infliction of emotional distress. (See id. at 987.) The Resnicows do not provide authority for the proposition that Theroux must make out the same showing here.

As with other claims that are the subject of the current motions, the Resnicows attack the sufficiency of Theroux's evidence of emotional distress. (See NYSCEF No. 1091 at 16.) But the Resnicows' burden as the moving parties at summary judgment is higher: They must establish as a matter of law that Theroux cannot prove that he suffered compensable emotional harm due to Norman Resnicow's conduct. The Resnicows have not met that burden. (See Belgium v. Mateo Products, 138 AD3d 479, 479 [1st Dept 2016] [holding that the motion court improperly granted summary judgment when plaintiff had "merely pointed to gaps" in the defendant's evidence].)

3. Theroux's claim for nuisance-related professional fees

The Resnicows also seek dismissal of Theroux's claim for professional fees allegedly incurred as a result of Norman Resnicow's nuisance conduct. This request is granted in part and denied in part.

According to Theroux's expert/damages disclosure, some of the fees at issue related to design and engineering work related to the exterior balcony and staircase, "which Mr. Resnicow misled Plaintiff into believing were his rather than the co-op's responsibility." (NYSCEF No. 1025 at 5-6 [¶ 3 [b]-[c].) The court agrees with the Resnicows that these damages are not recoverable in nuisance. The record reflects that maintenance work for the exterior balcony and stair would have to have been undertaken regardless. That Norman Resnicow's conduct allegedly caused Theroux to have to spend time and money bringing about those repairs himself, rather than leaving it to the co-op, did not interfere with Theroux's use and enjoyment of the property.[FN13] Theroux's request for professional-fee damages is therefore dismissed to the extent it is based on fees incurred for work on the exterior balcony and staircase.

With respect to the remainder of the professional fees at issue, the Resnicows challenge the extent of the damages claimed by Theroux. They argue, among other things, that Theroux [*14]has not sufficiently shown what increment of those fees stemmed specifically from Resnicow's nuisance behavior, and that this shortcoming was (assertedly) exacerbated by Theroux's design professionals' improperly recording their time in "block billing" form. (NYSCEF No. 546 at 27-28.) The Resnicows have not, however, met their initial burden at summary judgment to show that none of the fees at issued were incurred as a result of Norman Resnicow's conduct. Their challenges to the extent of those fees is properly left for trial—as shown by the fact that the precedents on which they rely were issued after trial or inquest, not at summary judgment.[FN14] The remainder of the Resnicows' summary-judgment motion with respect to Theroux's claim for nuisance-related professional fees is therefore denied.

4. Theroux's claim for compensatory damages for trespass

Under this court's prior ruling on Theroux's trespass claim, as affirmed by the First Department, the Resnicows are liable to Theroux in trespass, with the amount of his damages still be determined. (See Theroux, 2019 NY Slip Op 31819[U], at *6.) Theroux has contended that he is entitled to $100,000 in trespass damages. On this motion, the Resnicows seek summary judgment dismissing any monetary claim beyond nominal damages of $1 for each trespass. (See NYSCEF No. 546 at 18.) The Resnicows' motion on this issue is denied.

As with Theroux's nuisance-damages claim, the Resnicows attack Theroux's proof of damages—arguing, for example, that Theroux's expert and damages disclosure does not disclose how damages were calculated and whether the amount of claimed damages was arrived at through "peer-reviewed or judicially accredited principles." (NYSCEF No. 546 at 17.) But it is not Theroux's burden at this stage to prove the amount of damages to which he is entitled—only to raise an issue of fact about whether he has suffered more than nominal damages. Theroux has done so.

The record reflects that the Resnicows wrongfully annexed about 40 square feet of Theroux's portion of the rooftop terrace by placing a line of bricks at the boundary claimed by the Resnicows—a boundary claim that the courts have rejected. (See 187 AD3d at 655.) For that conduct alone, Theroux is entitled to recover more than nominal damages.[FN15] Theroux also argues that "Resnicow's repeated trespasses from September 2017 through April 2018 caused further damages, including consequential damages and damages for discomfort and inconvenience." (NYSCEF No. 858 at 15, citing Volunteer Fire Ass'n of Tappan, Inc. v County of Rockland, 101 AD3d 853, 856 [2d Dept 2012] [internal quotation marks omitted].) Even the Resnicows [*15]acknowledge that this kind of injury may be compensable in appropriate circumstances. (See NYSCEF 1091 at 14; Julia Props., LLC v Levy, 137 AD3d 1224, 1226 [2d Dept 2016].) And the Resnicows have not shown as a matter of law that Theroux is foreclosed from recovering such compensation here.

The Resnicows also contend that Theroux has "impermissibly commingled" his claims for nuisance damages and for trespass damages. (NYSCEF No. 546 at 19.) In particular, the Resnicows argue that Theroux's claim for nuisance damages resulting from the loss of rental value of his apartment is based entirely on the boundary dispute, which was "manifested by the trespassing bricks," and that Theroux therefore cannot recover damages on both claims. (Id.) Theroux cannot claim damages based on the idea that Resnicow's alleged nuisance behavior decreased the rental value of his apartment. (Id.) The Resnicows are correct that Theroux cannot recover nuisance damages to the extent that they are duplicative of his claimed damages for trespass. (See Volunteer Fire Ass'n of Tappan, Inc. 101 AD3d at 857.) But the Resnicows have not shown as a matter of law that the two sets of damages are wholly duplicative, as required to obtain summary judgment dismissing Theroux's claim either for nuisance or for trespass damages.

5. Theroux's claim for punitive damages

The Resnicows move for summary judgment dismissing Theroux's request for punitive damages on his trespass claim, arguing that the wrongful conduct alleged by Theroux fails as a matter of law to clear the demanding threshold for awarding punitives. This court is not persuaded that summary judgment is warranted on this claim.

Theroux has offered evidence that the actions by Norman Resnicow that underlie Theroux's nuisance and trespass claims were willfully malicious. Among other things, Theroux has submitted emails from Resnicow in which he stated that the Resnicows would not have instigated the boundary dispute between the parties had they not been treated in a "dismissively un-neighborly way" (NYSCEF No. 868 at 1), and in which he implied that he intended to impair Theroux's "quality of life with his wife, and his apartment value" (NYSCEF No. 869 at 3). (See NYSCEF No. 858 at 22 [discussing these emails and other evidence].)

The Resnicows contend that Theroux's showing is insufficient to reach a jury, because the cases in which the Appellate Division has found punitive damages to be available in the trespass context involved scenarios in which the defendant's wrongdoing involved "a material entry upon the plaintiff's property combined with destruction and quasi-criminal conduct." (NYSCEF No. 1091 at 17 [collecting cases].) This contention is not without force. Ultimately, though, the court concludes that Theroux has introduced enough evidence that Resnicow's trespassory conduct was motivated by malice and spite to raise a material issue of fact about whether punitive damages should be awarded. The Resnicows' motion for summary judgment on Theroux's punitive-damages claim is denied.

6. Theroux's claim for attorney fees

The Resnicows seek summary judgment dismissing Theroux's claim for attorney fees, on the ground that no contract, statute, or regulation providing for fees applies here. (See NYSCEF No. 546 at 23.) In response, Theroux argues that the conduct of the Resnicows and their counsel during this litigation is sanctionably frivolous within the meaning of 22 NYCRR 130-1.1 (a) and (c). (See NYSCEF No. 858 at 25-26.)

This court is doubtful that all the conduct Theroux cites comes within the scope of § 130-1.1: The Resnicows' out-of-court instigation of the boundary dispute before May 2017 is not [*16]conduct related to the litigation now before the court. This court is also skeptical that Norman Resnicow's behavior during his deposition—which did not lead Theroux to seek sanctions at the time—warrants an award of counsel fees. It might prove to be a different story, on the other hand, with respect to Resnicow's wrongful behavior toward potential witnesses in the action, which prompted Theroux to seek and this court to grant an injunction against him (see Theroux v Resnicow, 2019 NY Slip Op 34911[U] [Sup Ct, NY County July 29, 2019]); and the Resnicows' efforts during this litigation to embarrass Theroux during this litigation through tabloid media coverage of Theroux and the parties' dispute.

This court does not definitively resolve these issues here. But Theroux has raised a genuine issue of fact with respect to some of the conduct that he claims warrants an award of attorney fees against the Resnicows under § 130-1.1. The Resnicows' motion for summary judgment dismissing Theroux's attorney-fee claim is denied.

B. The Resnicows' Motion to Preclude Theroux's Damages-Related Evidence of Fees He Paid to His Business Manager

The Resnicows move under CPLR 3126 to preclude Theroux from providing evidence of any fees charged by Theroux's business manager after May 2017 (thereby precluding Theroux from recovering any of those fees), due to what they contend to be Theroux's violation of CPLR 3101 (h). The Resnicows' motion on this issue is denied.

CPLR 3101 (h) requires plaintiffs promptly to supplement a prior discovery response upon learning that the prior response is incomplete or incorrect. Plaintiffs must also supplement a discovery response if "the response, though correct and complete when made, no longer is correct and complete, and the circumstances are such that a failure to amend or supplement the response would be materially misleading." (Id.)

CPLR 3126 confers authority on courts to "impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed." (Korsinsky & Klein, LLP v FHS Consultants, LLC, 214 AD3d 961, 963 [2d Dept 2023] [internal quotation marks omitted].) An important factor in invoking stern sanctions under CPLR 3126, such as imposing preclusion or striking a pleading altogether, is whether the moving party has shown that the failure to disclose was willful, contumacious, or in bad faith. (See Hassan v Manhattan & Bronx Surface Transit Operating Auth., 286 AD2d 303, 304 [1st Dept 2001] [internal quotation marks omitted].) One can infer the willful and contumacious nature of a default from a repeated failure by a party to "respond to demands or comply with disclosure orders in tandem with inadequate excuses for default." (Fuchs v Volz, 2023 NY Slip Op 50575[U] at *4 [Sup Ct, NY County June 14, 2023], citing Watson v City of NY, 157 AD3d 510, 512 [1st Dept 2018].)

The Resnicows assert that they asked Theroux to supplement his document production to include time records for Theroux's business manager, Patricia Doudna, for periods falling after May 2017. Theroux seeks to recover $143,955 in fees charged by Doudna between September 10, 2015, and October 12, 2021; but Theroux produced her time records only for the period September 2015 through May 2017 (NYSCEF No. 546 at 26). Accordingly, the Resnicows argue, Theroux should be precluded from relying on the withheld evidence. (Schleger v Jurcsak, 186 AD3d 771, 773 [2d Dept 2020].)

The Resnicows are correct that their first set of document demands, served in February 2018, sought "all invoices rendered to Justin Theroux for the time spen[t] by his professional [*17]representative in responding to and handling Attorney Resnicow's demands." (NYSCEF No. 1090 at 1-2; NYSCEF No. 1020 at ¶ 53.) The Resnicows' fourth set of document demands, served in December 2021, renewed that request in similar language. (See NYSCEF No. 1023 at ¶15.) And Theroux acknowledges that he did not fully respond to this request until after the Resnicows raised the issue in briefing on this motion. (NYSCEF No. 858 at 28.)

Nevertheless, the Resnicows have not shown that Theroux's failure to comply with this aspect of discovery was willful, contumacious, or in bad faith. The Resnicows do not contend that Theroux flouted a directive by this court to produce Doudna's 2017-2021 time records. And the Resnicows' counsel concedes that he did not raise the issue of production of the records with Theroux in a good-faith letter or meet-and-confer session. (See NYSCEF No. 1090 at ¶¶ 9-10.) In these circumstances, Theroux's delay in producing the records does not constitute the kind of willful or contumacious failure to comply with discovery that would warrant preclusion.[FN16] (See e.g. Sparakis v Gozzer Corp., 177 AD3d 1011, 1012-1013 [2d Dept 2019] [willful and contumacious conduct found only after a repeated failure to comply with court orders and three separate deadlines set by the court]; Henderson-Jones v City of NY, 87 AD3d 498, 505 [1st Dept 2011]; Roug Kang Wang v Chien-Tsang Lin, 94 AD3d 850, 852 [2d Dept 2012].)

III. Motion Sequence 015

On motion sequence 015, the Resnicows move to strike Theroux's jury demand, contending that he is not entitled to a jury trial under CPLR 4101. The motion is denied.

CPLR 4101 provides that a plaintiff is entitled to a jury trial in an action in which the plaintiff "demands and sets forth facts that would permit a judgment for a sum of money only; an action of ejectment; for dower or determination of a claim to real property under article fifteen of the real property actions and proceedings law; and any other action in which movant is entitled by the constitution or express provision of the law." The right to a jury trial may be waived by "joining legal and equitable causes of action arising out of the same wrong." (Ossory Trading v Geldermann, Inc., 200 AD2d 423, 423 [1st Dept 1994].)

In moving to strike Theroux's jury demand, the Resnicows argue primarily that Theroux's request for a declaratory judgment about the location of the rooftop-terrace boundary line seeks equitable relief; that this request is inextricably intertwined with Theroux's trespass claim; and that the joinder of these claims constituted a waiver of Theroux's right to a jury trial. (See NYSCEF No. 539 at ¶¶ 4-7.) This court disagrees.[FN17]

As Theroux contends, a party's assertion of a declaratory-judgment claim does not resolve whether the party has preserved or waived the right to a jury trial, because that claim is not, in itself, legal or equitable. (See Martell v North River Ins. Co., 107 AD2d 948, 949 [3d Dept 1985].) The question is instead whether "the underlying claims set forth in the complaint are legal rather than equitable in nature." (Arrow Communication Labs. v Pico Prods., 219 AD2d 859, 860 [4th Dept 1995] [internal quotation marks omitted].) To answer that question, one must "examine which of the traditional common-law actions would most likely have been used to present the instant claim had the declaratory judgment action not been created."[FN18] (Strachman v Palestinian Auth., 73 AD3d 124, 127 [1st Dept 2010].)

In other words, absent the declaratory-judgment device, would Theroux most likely have limited himself to claims at law seeking damages for trespass and nuisance (as he contends) (NYSCEF No. 853 at ¶ 49), or would he have sought "an injunction requiring Norman Resnicow to remove the brick line and prohibiting him from crossing [his] claimed boundary" (as the Resnicows argue) (NYSCEF No. 539 at ¶ 7)? This court concludes that Theroux's position is more persuasive.

The core theory of Theroux's complaint, and his arguments on these motions, is that the Resnicows have undertaken a harassment campaign against him in retribution for the parties' dispute over the issue of soundproofing, including ginning up a dispute over the roof-terrace boundary line, for which Theroux is seeking redress in damages sounding in nuisance and trespass. (See NYSCEF No. 855 at ¶¶ 110-114, 124-131.) An award of money alone might not definitively resolve the location of the boundary line going forward;[FN19] but the issue-preclusive effect of a ruling in Theroux's favor on his trespass claim would do so, without need for an injunction—as witness the fact that Theroux has never sought an injunction relating to the boundary-line dispute.[FN20] Because Theroux's declaratory-judgment claim is an extension of his [*18]nuisance and trespass claims for damages, which are legal in nature, Theroux's request for declaratory relief did not waive his right to a jury trial.

The Resnicows also suggest that Theroux's alternative request in his complaint for equitable reformation of the co-op offering plan with respect to the boundary line should constitute a waiver of his right to a jury trial. (See NYSCEF No. 1116 at ¶¶ 4, 9.) But that request, asserted only in the alternative, is merely incidental, and does not alter the overall legal nature of Theroux's action.[FN21] (See Decana Inc. v. Contogouris, 45 AD3d 363, 364 [1st Dept 2007] [reversing trial court's granting of motion to strike jury demand based on the fact that the constructive trusts plaintiffs sought were incidental to the monetary relief sought].) Theroux is entitled to a jury trial.

Accordingly, for the foregoing reasons, it is hereby

ORDERED that the branch of Theroux's motion seeking summary judgment on liability in his favor on the first and fifth causes of action in his amended complaint (mot seq 013) is granted; and it is further

ORDERED that the Resnicows' cross-motion for summary judgment dismissing Theroux's first and fifth causes of action (mot seq 013) is denied; and it is further

ORDERED that the branch of Theroux's motion seeking dismissal of the affirmative defenses asserted in the Resnicows' amended and supplemental answers (mot seq 013) is granted; and it is further

ORDERED that the branch of Theroux's motion seeking dismissal of the Resnicows' counterclaims (mot seq 013) is granted only to the extent that the Resnicows' third counterclaim is dismissed except with respect to any request on that counterclaim for nominal damages, and the Resnicow's fifth counterclaim is dismissed with respect to its request for punitive damages, and this branch of the motion is otherwise denied; and it is further

ORDERED that the branch of the Resnicows' motion seeking dismissal of Theroux's damages claims (mot seq 014) is granted only with respect to Theroux's claim for professional fees incurred with respect to the exterior balcony and staircase, and otherwise denied; and it is further

ORDERED that the branch of the Resnicows' motion seeking, in effect, to preclude Theroux from offering evidence in support of his damages claims with respect to the fees he paid his business manager (mot seq 014) is denied; and it is further

ORDERED that the Resnicows' motion to strike Theroux's jury demand (mot seq 015) is denied.

Dated: August 28, 2023
Hon. Gerald Lebovits
J.S.C. Footnotes

Footnote 1:Resnicow asserts that Theroux has disclaimed damages relating to his domestic disturbances, highlighting two instances in a 2019 deposition in which Theroux stated that he would not pursue damages regarding those disturbances. (NYSCEF No. 1039 at 25-26; NYSCEF No. 613 at 85, 90.) He contends that Theroux's deposition statements are evidence that Theroux is "exploiting" Resnicow's pattern of screaming at his wife as pretext for a nuisance claim. (NYSCEF No. 1039 at 25-26.) But since that deposition, Theroux has maintained that the sounds of Resnicow's anger and abuse form part of his nuisance claim. (NYSCEF No. 1117 at 5, 31.) This court concludes that Theroux has not forfeited any claim to damages related to Resnicow's outbursts simply because of two statements he made during a deposition four years ago. Given that Resnicow has not supplied any other evidence of pretext, this court is not persuaded that Theroux's nuisance claim is pretextual.

Footnote 2:Resnicow also argues more generally that Theroux's summary-judgment motion on his private-nuisance claims must be denied because "[w]hat constitutes a private nuisance ordinarily turns on questions of fact." (NYSCEF No. 1039 at 26.) Adjudicating a private-nuisance claim entails considering the totality of the relevant circumstances, but that does not necessarily foreclose granting summary judgment in an appropriate case. (See e.g. Gellman v Seawane Golf & Country Club, Inc., 24 AD3d 415, 417-418 [2d Dept 2005] [reversing denial of summary judgment to plaintiff on private-nuisance claims]; Higgins v Village of Orchard Park, 277 AD2d 989, 990 [4th Dept 2000] [same].)

Footnote 3:The language in Tzifil Realty on which Resnicow relies may perhaps be best understood as reflecting the motion court's view that none of the acts on which the plaintiff was relying would constitute the kind of unreasonable or objectionable conduct that could support a nuisance claim. (See 2019 NY Slip Op 52144[U], at *1-2 [discussing how none of the complained-of acts constituted nuisance-type behavior].)

Footnote 4:That action remains pending. (See 71 Washington Pl. Owners, Inc. v Resnicow, Index No. 151602/2022 [Sup Ct, NY County].)

Footnote 5:Resnicow argues that his placement of a row of bricks on the deck as part of that boundary dispute at most created an eyesore, not a nuisance. (NYSCEF No. 1039 at 18; see Ruscito v Swaine, Inc., 17 AD3d 560, 561 [2d Dept 2005] [finding that, without more, the mere presence of unsightly dumpsters, automobiles, and dirt ramparts did not constitute a nuisance].) Given this court's holding that the row of bricks was placed on Theroux's property, not Resnicow's, this argument fails. (See Theroux v Resnicow, 2019 NY Slip Op 31819(U), *7, *15 [Sup Ct, NY County, June 25, 2019].) Indeed, Resnicow's claim that he "annexed nothing" in the course of the boundary dispute is contradicted by his own admission in the record that Theroux was "stuck with" a "much smaller and less useable 9'10" x 20' boxcar." (NYSCEF No. 1039 at 18; NYSCEF No. 1117 at 11.)

Footnote 6:Resnicow contends that the allegations about his communications with the co-op board of directors are defamation claims, not nuisance claims, and that Theroux cannot maintain a defamation claim against him for this conduct. (NYSCEF No. 1039 at 22.) Theroux denies that he is bringing a defamation claim and replies that his argument is that Resnicow's emails to the board, which included false allegations and complaints, are part of his nuisance behavior. (NYSCEF No. 1117). Theroux correctly contends that "false complaints and accusations against a plaintiff can properly be part of a nuisance cause of action." (NYSCEF No. 1117 at 29; accord Chelsea 18 Partners, LP v Sheck Yee Mak, 90 AD3d 38, 43 [1st Dept 2011] [plaintiff had the right to bring an action for common-law nuisance where defendant's course of conduct included filing "meritless complaints" to allegedly harass them].)

Footnote 7:Resnicow claims that Domen Holding instead supports him, because the Court of Appeals held in that case that an issue of fact existed on plaintiff's nuisance-eviction claim. (NYSCEF No. 1039 at 26, citing Domen Holding, 1 NY3d at 125.) But the specific identified conduct in Domen Holding consisted of three discrete incidents over a five-year period, coupled with a more general allegation that those incidents were consistent with the defendant's overall behavior. (See 1 NY3d at 122-123, 124-125.) Theroux's evidence here is not so limited.

Footnote 8:As discussed below, some overlap exists between these two sets of affirmative defenses.

Footnote 9:The Resnicow's first counterclaim, alleged in their original answer filed in 2017, sought a declaratory judgment in the Resnicows' favor about the location of the property line on the parties' shared terrace. (See NYSCEF No. 8 at 34.) Summary judgment was granted against the Resnicows on this counterclaim in 2019. (See Theroux, 2019 NY Slip Op 31819[U], at *2-5, *6, affd 187 AD3d at 654-655.)

Footnote 10:The First Department's decision in Ave. A Assocs. LP v Bd. of Managers of Hearth House Condo. (190 AD3d 473 [1st Dept. 2021]), relied on by Theroux (NYSCEF No. 843 at 22), was not a trespass case and addressed only a request for a preliminary injunction. (See 190 AD3d at 473-474.)

Footnote 11:The court need not and does not determine on this motion whether the Resnicows may obtain both permanent injunctive relief and damages, should Theroux ultimately be held liable in nuisance for his installation or use of the floodlights.

Footnote 12:The same is true of the Appellate Division decisions in Dankner v Steefel (47 AD3d 867, 868 [2d Dept 2008]) and Orlic v Gatling, 44 AD3d 955, 957 [2d Dept 2007]), cited by the Resnicows on reply. (See NYSCEF No. 1091 at 16.)

Footnote 13:Theroux provides no authority for the proposition that this opportunity cost, without more, is a cognizable harm in private nuisance.

Footnote 14:See NYSCEF No. 546 at 27-28, citing Freidman v Yakov (138 AD3d 554, 555-556 [1st Dept 2016] [attorney-fee hearing by special referee]); 546-552 W. 146th St. LLC v Arfa (99 AD3d 117, 123 [1st Dept 2012] [attorney-fee hearing by judicial hearing officer]); O'Malley v Campione (70 AD3d 595, 595 [1st Dept 2010] [bench trial]); Lyon v Beloski Constr. (247 AD2d 730, 731 [3d Dept 1998 [bench trial]); Orser v Wholesale Fuel Distribs.-CT, LLC (65 Misc 3d 449, 452, 459 [Sup Ct, Greene County 2018] [post-trial attorney-fee motion, decided by the court without a hearing at the request of the parties], affd 173 AD3d 1519 [3d Dept 2019]).

Footnote 15:This court agrees with the Resnicows that an October 2015 email from Norman Resnicow about that 40-square-foot strip of terrace, from which Theroux quotes to show his damages (NYSCEF No. 858 at 14, quoting NYSCEF No. 874 at 4), is inadmissible under CPLR 4547 as a settlement offer. But Theroux can still prove through other means that he was damaged by the Resnicows' trespass on that part of his property.

Footnote 16:The Resnicows also contend that preclusion is warranted because Theroux's belated production of the time records was not made in the native file format (Excel spreadsheets). (See NYSCEF No. 546 at 27.) But the Resnicows themselves concede that given the manner in which Doudna maintained her records, the native Excel spreadsheets likely would not contain all the information the Resnicows seek, either. (See NYSCEF No. 543 at ¶ 87.)

Footnote 17:Theroux also contends that his claims about the proper location of the boundary line constitute claims over possession of real property under Real Property Actions and Proceedings Law (RPAPL) art. 15, thereby bringing those claims within CPLR 4101. (NYSCEF No. 853 at ¶¶ 35-41.) But Theroux supplies no authority holding that a dispute over the location of a property boundary line constitutes an RPAPL art. 15 claim when that boundary line is defined by a cooperative-apartment-building's offering plan and proprietary leases. (Cf. Chase v Wells Fargo Bank, N.A., 135 AD3d 751, 753 [2d Dept 2016] [holding that because shares of stock in a cooperative apartment corporation are personal property, not real property, a party's action to proceed against a security interest consisting of co-op shares is governed by Uniform Commercial Code art. 9, not RPAPL art. 13].) Regardless, the court need not, and does not, reach this question, given the court's conclusions with respect to Theroux's other arguments about his right to a jury trial.

Footnote 18:The Resnicows argue that Martell and Arrow Communications are inapposite because in each of those decisions the plaintiff's request for a declaration assertedly was an "equitable claim[] that would merely establish the basis for the claims for money damages pleaded." (NYSCEF No. 1116 at ¶ 5.) But this argument begs the question those cases address: Whether a declaratory-judgment claim can be deemed "legal" or "equitable" in isolation. The court does not agree with the Resnicows that Martell and Arrow Communications treat declaratory-judgment claims are equitable in nature. (See Martell, 107 AD2d at 949; accord Arrow Communications, 219 AD2d at 860.)

Footnote 19:For this reason, this court is somewhat skeptical of Theroux's argument that he is entitled to a jury trial because he could have obtained full and complete relief through receiving damages on his trespass and nuisance claims. (See NYSCEF No. 853 at ¶¶ 33-34, citing Fox v Skolnick, 294 AD2d 225 [1st Dept 2002].)

Footnote 20:This court declines the Resnicows' invitation (NYSCEF No. 539 at ¶ 8) to give dispositive weight to the allegation in the declaratory-judgment section of Theroux's amended complaint that he "has no adequate remedy at law, as monetary damages are inadequate to resolve the dispute regarding the proper division of the roof deck." (NYSCEF No. 855 at ¶ 141.)

Footnote 21:This court's ruling about the boundary line denied in one sentence Theroux's request for reformation, holding it academic. (Theroux, 2019 NY Slip Op 31819[U], at *5.)