Appeal by plaintiff from so much of an order of the District Court, Suffolk County (P. Barton, J.), dated September 26, 2002, as granted the branch of defendant's motion seeking to dismiss the complaint and denied his cross motion to amend the caption. Cross appeal by defendant from so much of the same order as denied the branch of its motion seeking the imposition of sanctions against plaintiff.

Order unanimously affirmed without costs.

Plaintiff commenced the instant action against defendant for its alleged act of nuisance. Plaintiffs first cause of action sought an injunction restraining defendant from providing catering services at the Fred Shore Beach Club located next to plaintiffs property and his second cause of action sought monetary damages for the alleged nuisance. Plaintiff maintained that the events hosted by the beach club "annoy[ed], harass[ed], inconvenienc[ed] and disturb[ed]" him. Plaintiff alleged that the deed for the Fred Shore Beach Club contained a covenant restricting the use of the beach club solely for bathing purposes and that defendant was aware of said covenant but provided catering services on three occasions for various events held at the club thereby contributing to the nuisance. Since defendant did not create or further aggravate the allegedly objectionable conditions emanating from the beach club but only provided catering services on three occasions, we are of the opinion that plaintiff failed to state a cause of action in nuisance against defendant (CPLR 3211 [a] [7]).

Furthermore, even assuming that plaintiffs first cause of action had merit, since the District Court is without jurisdiction to grant the relief sought therein, to wit, an injunction restraining defendant from providing catering services on the adjoining property of the Fred Shore Beach Club (see UDCA 202; Mormon v Acura of Val. Stream, 190 Misc 2d 697, 698 [App Term, 9th & 10th Jud Dists]), the lower court properly dismissed same. [*2]

We are of the opinion that plaintiffs act of commencing the instant lawsuit was not "frivolous" so as to warrant the imposition of sanctions against him (see Rules of Chief Administrator [22 NYCRR] ~ 130.1-1). However, in view of our determination herein, plaintiffs commencement of similar lawsuits in the future may constitute "frivolous" conduct warranting the imposition of sanctions.
Decision Date: December 22, 2003