Nemeth v. K-Tooling

APPELLATE DIVISION
THIRD DEPARTMENT
Torts

New York Law Journal

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Justice William McCarthy

Plaintiff homeowners owned properties on parcels adjacent to defendants, who operate manufacturing businesses. They sued defendants in separate actions, alleging noises and odor created by their operations constituted a private nuisance, seeking to enjoin an alleged violation of the Village of Hancock Zoning Law. Supreme Court dismissed the actions, and plaintiffs appealed. The panel concluded the lower court did not err in dismissing the private nuisance cause of action. It found that while plaintiffs found the noises and odor offensive and annoying, defendants submitted contrary evidence not only from themselves but from objective sources. The panel noted the record supported the determination that any interference with plaintiffs' property from defendants' operations did not rise to the level of being "substantial" or unreasonable to persons of ordinary sensibilities. Thus, the panel found the lower court properly dismissed the nuisance action. Yet, it found plaintiffs were entitled to an injunction prohibiting defendants from using an addition to a brick building on their property for non-residential purposes, but were not entitled to damages on their zoning violation claim.

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