This motion by defendant Omnipoint Communications, Inc. ("Omnipoint") for an order pursuant to CPLR 3212 granting it summary judgment dismissing the complaint and all cross-claims against it is granted.

This cross-motion by defendant Nextel of New York, Inc., d/b/a Nextel Communications ("Nextel") for an order pursuant to CPLR 3212 granting it summary judgment dismissing the complaint and all cross-claims against it and an order pursuant to 22 NYCRR 130-1.1(a), (b), (c) imposing costs and sanctions on plaintiffs is granted to the extent provided herein.

This cross-motion by defendant Sitetech Group, Ltd. ("Sitetech") for an order pursuant to CPLR 3212 granting it summary judgment dismissing the complaint and all cross-claims against it and awarding it contractual indemnification by defendants Nextel and/or Omnipoint, as well as costs, [*2]expenses and attorneys fees, is granted to the extent provided herein.

This cross-motion by defendant Town of Hempstead for an order pursuant to CPLR 3212 granting it summary judgment dismissing the complaint and all cross-claims against it is granted.

In this action sounding in nuisance, plaintiffs allege in their complaint that defendant Town granted defendants Sitetech, Omnipoint and Nextel permission to erect a 125-foot high monopole or tower with three wireless communication antennae atop it and an equipment cabinet at its base on Burns Avenue in Wantagh, near their home at 3062 Lowell Avenue. Plaintiffs allege that ever since the tower site became operational in or about April, 2002, they have been beset by sounds and vibrations penetrating their home and devastating their home life. Plaintiffs allege, upon information and belief, that the noise and vibrations are caused by transmissions and/or waves emanating from the tower. Plaintiffs' first cause of action sounds in nuisance and their second cause of action sounds in negligence. Plaintiffs allege in their third cause of action that defendant Town has violated a public duty by permitting the tower to be erected and maintained.

The tower is situated on the southern boundary of property located at 3010 Burns Avenue, 900 feet southwest of plaintiff's home. The primary occupant of that property is a recycling facility. Neighboring it are other industrial sites including a furniture factory and a fuel oil distribution center which has its own rooftop radio tower. To the south of plaintiffs' property is a warehouse and Long Island Railroad tracks.

Defendant Sitetech leased the property on which the tower stands from 3010 Burns Avenue Corp., LLC, in 1999 for the purpose of installing a communications facility. Sitetech in fact owns the tower which was erected in the spring of 2002 pursuant to a variance granted by defendant Town. Pursuant to a sublease with Sitetech, defendant Omnipoint owns and operates three antennae on the tower which became operational on June 25, 2002. Similarly, pursuant to a sublease with Sitetech, defendant Nextel has six antennae atop the tower which became operational on October 11, 2002.

At his examination-before-trial, plaintiff Charles Jedlica testified that the noise sounded like a low level hum, the kind of noise a ballast makes when it fails in a florescent light, or like "a generator" similar to those used when work is done on the highway. Charles testified that the sound is always present, varies in loudness and follows a fairly regular three-to-four hour cycle, but is generally not any louder than a truck. He testified that the sound is loudest in the rooms at the rear of his house, i.e., the portion facing the tower. He testified that the sound is more intense inside his house than outside because the sound outside is "dispersed" outside with the rest of the outside noise. Charles testified that he hears the noise equally throughout his back yard, that he hears it when he drives on Burns Avenue, too, and that it seems as loud there as it is at his home. Charles testified that putting his fingers in his ears does not help. He testified that he began hearing the sound in April 2002 shortly after the tower was put up and that the sound appears to come from the southwest where the tower is located. Charles also testified to feeling vibrations of an electrical nature which are stronger in the rear of his home. He testified that he has never visited the cell phone tower.

At her examination-before-trial, plaintiff Bridget Jedlica testified that the noise began "[r]ight away, as soon as they put those [antennae] up" on top of the tower. She testified that the sound is like a humming motor and in terms of loudness, it is "like a truck." She agreed with Charles that the sound was loudest in the rooms at the back of the house but she did not know if it was louder inside or outside. She, however, has never experienced the vibration that Charles complains of. Bridget testified that the noise occurs every day, both during the day and night and that it disappears only "once in a while." Bridget has also never been to the site of the tower.

Plaintiffs have never made any attempt to record or have measurements taken of the noise. None of plaintiffs' neighbors have ever complained of the noise. Plaintiffs testified, however, that their friends and relatives have heard it.

On May 18, 2006, Dr. John Erdreich, an expert retained by defendants Omnipoint and Nextel, performed objective sound level measurements at the tower and plaintiffs' home, both inside and outside, using a Bruel & Kjaer type 2250 real-time analyzer to measure sound. The equipment at the tower was on at the time Dr. Erdreich performed his measurements since the tower and associated equipment operate continuously, 24 hours per day. Dr. Erdreich found that the sound levels measured at the base of the tower were "on the order of 60 [decibels]." Dr. Erdreich concluded that the intervening distance and the insulating effect of the walls of plaintiffs' residence would render this level of noise completely inaudible at plaintiffs' home. When Dr. Erdreich came to plaintiffs' property to take measurements, plaintiff Charles Jedlica indicated that he was hearing the noise. With power to the home turned off so as to eliminate internal sources of noise, Dr. Erdreich's measurements detected average sound levels ranging from 8 to 40 decibels across the range of frequencies audible to the human ear. In Dr. Erdreich's words, "[t]his is quieter than a whisper."

In addition, as a scientific matter, Dr. Erdreich determined that the radio emissions from the cell tower could not be the cause of any sound or other mechanical vibrations that occur within or near plaintiffs' home. He noted that "[i]n order for any radio signal to be heard, it must be converted to mechanical energy (sound) by some process." Even if such a conversion were taking place, he noted that the frequencies of the radio waves emitted by the tower are at least 800 megahertz (800 million cycles per second). Thus, a frequency "forty thousand times higher than the limit of human hearing" would be the result of the conversion.

Ram K. Sharma, a Senior Radio Frequency Engineer employed by T-Mobile, the parent corporation of Omnipoint, attests that "[t]he radio waves emitted by Omnipoint's antennae are electromagnetic, not mechanical, vibrations. Therefore, they are not audible and cannot by themselves produce sound or mechanical vibrations. The signals emitted can become audible only when received, amplified, and transformed into sound waves by a powered cellular telephone tuned to the frequency range broadcast by the antennae."

David Evans, a Senior Radio Frequency Engineer employed by defendant Nextel, attests that the radio waves emitted by Nextel's antennae are also electromagnetic and not mechanical [*3]vibrations. Therefore, they are not audible and cannot by themselves produce sound or mechanical vibrations. He opines that the signals that are emitted can only become audible when received, amplified and transformed into sound waves by a powered cellular telephone tuned to the frequency range broadcast by the antennae.

Charles Schwartz, a Code Enforcement Officer for defendant Town of Hempstead who responded to plaintiffs' complaints regarding the noise and/or vibrations, testified at his examination-before-trial that the investigation he conducted revealed no noises or vibrations at either plaintiffs' home or the tower.

All defendants seek summary judgment dismissing the complaint. In addition, Sitetech seeks contractual indemnification as well as costs and attorneys fees from Omnipoint and/or Nextel.

"On a motion for summary judgment pursuant to CPLR 3212, the proponent 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." (Sheppard-Mobley v King, 10 AD3d 70, 74 (2d Dept. 2004), aff'd. as mod., 4 NY3d 627 (2005), citing Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986); Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985)). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." (Sheppard-Mobley v King, supra, at p. 74; Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Ctr., supra.) Once movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. (Alvarez v Prospect Hosp., supra, at p. 324.)

The elements of private nuisance are " (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's right to use and enjoy land, (5) caused by another's conduct.' " (Mangusi v Town of Mount Pleasant, 19 AD3d 656, 657 (2d Dept. 2005) quoting Weinberg v Lombardi, 217 AD2d 579 (2d Dept. 1995)). "Conduct which is either reckless or negligent in character may form the basis of a nuisance claim, but whether characterized as either negligence or nuisance, [it] is but a single wrong,' and negligence must be proven." (Chenango, Inc. v County of Chenango, 256 AD2d 793, 794 (3d Dept. 1998), quoting Copart Indus. v Consolidated Edison Co. of NY,41 NY2d 564, 569 (1977), rearg den. 42 NY2d 1102 (1977)).

Plaintiffs allege that the harm arose only after the antennae were installed on the tower. Defendant Sitetech owns the tower which does not emit any noise or vibrations. It has never installed any electronic equipment at or around the tower nor does it own, operate, manage or control any of the antennae at the site. "[W]here, as here, the condition alleged to constitute a nuisance has its origin in negligence, the nuisance claim must fail in the absence of proof of the [lessor's] negligence." (Placide v Yadid, LLC, 224 AD3d 529, 530 (2d Dept. 2005) citing Copart Indus. v Consolidated Edison Co. of NY, supra, at p. 569 (1977)).

Omnipoint's antennae on the tower did not become operational until June 25, 2002 and Nextel's [*4]did not become operational until October 11, 2002. Plaintiffs allege and testified at their examinations-before-trial that the noise and vibrations began months before, in April 2002. Indeed, their complaints to the Town pre-dated Omnipoint and Nextel's antennae's operation. Defendants Omnipoint and Nextel have accordingly established that their antennae cannot be the source of the alleged noise or vibrations. Furthermore, Dr. Erdreich as well as Omnipoint and Nextel's employees, have established that their antennae cannot be the source of the noises plaintiffs are hearing in any event.

All defendants have established their entitlement to summary judgment, thereby shifting the burden to plaintiffs to establish the existence of a material issue of fact. (Alvarez v Prospect Hospital, supra, at p. 324).

The source of the noise and vibrations, particularly here with such a vast number of potential sources surrounding plaintiffs' home, is simply "not a matter of common knowledge which a lay jury could decide in the absence of expert testimony." (Koehler v Schwartz, 48 NY2d 807 (1979); see also, 530 East 89 Corp. v Unger, 43 NY2d 776, 777-778 (1977)). Plaintiffs' failure to support their claim at this juncture with any expert testimony or empirical evidence is fatal. (See, Holy Name of Jesus Roman Catholic Church v New York City Transit Authority, 28 AD3d 520, 521 (2d Dept. 2006) [plaintiff's failure to submit expert evidence that subway's vibration caused property damage required dismissal]; Lopez v Insurance Co. of North America, 289 AD2d 205 (2d Dept. 2001) [plaintiff's failure to submit expert evidence to establish that oil tank feed leak was caused by oil tank shifting as a result of flooding required dismissal]; Twin County Recycling Corp. v Yevoli, 224 AD2d 628 (2d Dept. 1996), aff'd. 90 NY2d 1000 (1997) [Town's failure to proffer expert evidence that odor, dust and noise produced by petitioner's asphalt plant exceeded those produced by neighboring industries or those likely to be produced by petitioner's replacement results in reversal of denial of special use permit]).

Turning to Sitetech's motion for summary judgment on its claim for contractual indemnification, Sitetech's lease with Omnipoint provides: