What’s Sauce for the Goose…

This post was originally published on the SGR Blog.

Julianne Allen sued her neighbors Jennifer and John Powers claiming that their two German Shepherds barked incessantly. The dogs’ constant barking at all hours allegedly interfered with Allen’s right to quiet use and enjoyment of her property. The Powers denied the allegations and asserted a counterclaim contending that Allen had repeatedly called municipal authorities with specious complaints in prolonged efforts to make them move or have their landlord, David Bosko, evict them.

Allen asked the Court to dismiss the counterclaim for failing to state a cause of action. Allen argued that the Powers’ allegations sounded like a claim for harassment— and New York does not recognize such a cause of action.

The counterclaim stated that Allen fabricated complaints or made frivolous complaints to various City officials to prevent the Powers from the use and quiet enjoyment of their property. This was classic nuisance language and the court felt obligated to consider a cause of action sounding in private nuisance. While the language mirrored the traditional terms of a private nuisance, the allegations did not. A classic nuisance complaint alleged that an unpleasant noise, odor or sight generated from a nearby tract of land rendered the plaintiff’s occupation and enjoyment of their home physically uncomfortable. In this case, according to the Court ,“the alleged blight is the intrusion of a bureaucratic horde to investigate the Powers’ compliance with municipal regulations.”

The question was not easily resolved because, as the Court found, “there is perhaps no more impenetrable jungle in the entire law than that which surrounds the word `nuisance.’” The examination of the Powers’ claim started with the elementary components of a private nuisance—proof of intentional action or inaction that substantially and unreasonably interfered with other people’s use and enjoyment of their property. Historically, the nuisance was produced by the wrongdoer on his own property.

Neither the Court nor the parties could locate a New York precedent where a private nuisance was caused by an act unconnected with another’s use of property. Yet, the Court found, nothing in the formulation of a nuisance claim required the action or inaction which caused the disturbance arise from or be connected to the use of nearby land.

Private nuisance is a common law claim and the common law allows a court to shape, extend, narrow or adapt the law to the context of a controversy between parties. So, the question before the Court became whether the or not to venture into new ground.

The Court returned to the origins of common law nuisance. “The common law’s protection against unpleasant sounds, smells and sights were to allow owners peace and repose in their homes. Just as the industrialization of the United States meant the proliferation of odors and noise, and the invention of the telephone allowed the ringing to breach the solitude and with it the common laws courts [found] a right to be free from such intrusions. Today, the administrative state has mushroomed and with it, a swarm of regulations. These regulations allow neighbors to sic municipal bureaucrats on each other. Authorities must dutifully undertake to examine each complaint which corresponds to visits by police and other members of the executive branch of government to a home owner. Each visit causes angst and repeated visits, when those visits are but a contrivance by a neighbor, leaves a homeowner in perpetual agitation—which creates a nuisance and robs the homeowner of solitude. Such [repeated] intrusions, when they are unjustified because of a neighbor’s specious claims, violated the homeowners’ right to the quiet enjoyment of their home—and correspondingly, give rise to a private cause of action for nuisance.”

The Powers’ allegations were directly connected to their ability to continue to use and enjoy their property. The Powers contended that all of Allen’s calls to authorities were an attempt by her to have them removed from their home by their landlord Bosko. This provided a direct connection to the use of the property. Thus, the Court was convinced that the Powers’ counterclaim alleged a private nuisance.

The ultimate question of nuisance would turn on the proof, at trial, of the number of complaints, the frequency of the complaints, the redundancy of complaints, and the legitimacy of complaints. But for pleading purposes, the Court held that the allegations contained in the counterclaim sufficed to state a claim of private nuisance.

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