City Court of Cohoes, April 1, 2019

Thorn, Gershon, Tymann and Bonanni, LLP, Albany (Brendan S. McGrath of counsel), for plaintiff.

Schiller, Knapp, Lefkowitz & Hertzel, LLP, Latham (Jamie Thomas of counsel), for Jennifer Powers and another, defendants.

Jonathan Schopf, Clifton Park, for David Bosko, defendant.

Julianne Allen (Allen or plaintiff) sued her neighbors Jennifer and John Powers (the Powers or defendants) claiming that their two German shepherds barked incessantly. The dogs' constant barking at all hours interfered with Allen's right to quiet use and enjoyment of her property—at least according to Allen's complaint. The Powers denied these allegations and interposed a counterclaim contending that Allen had repeatedly called municipal authorities with specious complaints. Allen's continued and prolonged efforts were an attempt to make them move or have their landlord, David Bosko, evict them—so say the Powers in their counterclaim.

Allen responded by asking the court to dismiss the counterclaim for failing to state a cause of action. Allen argues that the Powers' allegations sound like a claim for harassment. The problem with such a claim is that New York does not recognize a cause of action of harassment (Wells v Town of Lenox, 110 AD3d 1192 [3d Dept 2013]). Moreover, the allegations, Allen argues, "do not appear to make a claim for any other known tort" (plaintiff's mem of law at 2). Allen concludes, therefore, that since the Powers have not pleaded a cognizable theory of liability, their case must be dismissed.

The counterclaim states 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.{**64 Misc 3d at 173} This is classic nuisance language and the court, thus, feels the obligation to consider a cause of action sounding in private nuisance. While the language mirrors the traditional terms of a private nuisance, the allegations do not. A classic nuisance complaint alleges that an unpleasant noise, odor or sight generated from a nearby tract of land renders the plaintiff's occupation and enjoyment of their home physically uncomfortable (Cranford v Tyrrell, 128 NY [*2]341 [1891]). Here, the alleged blight is the intrusion of a bureaucratic horde to investigate the Powers' compliance with municipal regulations—a markedly unusual claim.

This question is not easily resolved. "There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance' " (Prosser & Keeton, Torts § 86 at 616 [5th ed 1984]). The examination of the Powers' claim starts with the elementary components of a private nuisance. "Private nuisance is established by proof of intentional action or inaction that substantially and unreasonably interferes with other people's use and enjoyment of their property" (Schillaci v Sarris, 122 AD3d 1085, 1087 [3d Dept 2014]). Historically, the nuisance was produced by the wrongdoer on his own property (In re Chicago Flood Litig., 176 Ill 2d 179, 205, 680 NE2d 265, 277-278 [1997]).

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, nothing in the elementary formulation of a nuisance claim requires the action or inaction which causes the disturbance to arise from or be connected to the use of nearby land (see e.g. Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570 [1977] [holding that the substantial interference with other's property need only be "caused by another's conduct in acting or failure to act"]). If this case were a statutory claim, the court would be at an impasse. Legislative enactments are inflexible. What a statute fails to command or to contemplate cannot be remedied by a court modifying the statutory language. Statutes by their very nature leave gaps. No legislative body, no matter how wise, can conceive of every possible circumstance that constitutes a civil wrong.

However, private nuisance is a common-law claim and the fantastic beauty of the common law is that it allows a court to shape, extend, narrow or adapt the law to the context of a controversy between parties. So, the question becomes whether{**64 Misc 3d at 174} the court should venture into new grounds. To assist in this endeavor, the court will examine three precedents from sister states: Macca v General Tel. Co. of Northwest (262 Or 414, 495 P2d 1193 [1972]); Brillhardt v Ben Tipp, Inc. (48 Wash 2d 722, 297 P2d 232 [1956]) and Schiller v Mitchell (357 Ill App 3d 435, 828 NE2d 323 [2005]).

In Brillhardt, a company misprinted its telephone number on sales slips. The number belonged to the plaintiff, a realtor. After the misprint, plaintiff was frequented with calls for the defendant; fed up with the calls from people not looking for her, she sued defendant for nuisance. Thus, the nuisance in Brillhardt, the repeated calls, was not caused by defendant, but by people who were attempting to call the defendant. Thus, the nuisance was not caused by the use of defendant's property. Nevertheless, the Washington Supreme Court found the repeated calls violated "[plaintiff's] right to enjoy her property without unreasonable interference" (i.e., a private nuisance), entitling her to damages (48 Wash 2d at 727, 297 P2d at 235).

Macca v General Tel. Co. of Northwest (262 Or 414, 495 P2d 1193 [1972]) dealt with a similar issue as Brillhardt. In Macca, a phonebook company erroneously listed plaintiff's telephone number as the "after hours" telephone number for a floral shop. This error generated numerous telephone calls to plaintiff. The court noted that nuisance "includes the disturbance of the comfort or convenience of the occupant of the land" (Macca, 262 Or at 419, 495 P2d at 1195). The Oregon Supreme Court analogized repeated phone calls to latter "unpleasant odors, smoke or dust, [and] loud noises" (id.). The court concluded that the phone company's misprint resulted in invasion of plaintiff's right to enjoy her property without unreasonable interference and she could recover damages (262 Or at 420, 495 P2d at 1195-1196).

Finally, Schiller v Mitchell (357 Ill App 3d 435, 828 NE2d 323 [2005]) involved the [*3]defendant making continuous calls to the police and other governmental agencies to complain about plaintiffs. Plaintiffs alleged that they were obliged to respond to calls and personal investigatory visits from government officials that had been initiated upon the demand of the defendant. This, plaintiffs averred, prevented them from the enjoyment of their home. Plaintiffs claimed that defendant's acts constituted a private nuisance. The Illinois court disagreed, holding that to state a cause of action for private nuisance it is necessary to allege a physical invasion of the plaintiff's property. According to the Illinois court, the calls and visits by the{**64 Misc 3d at 175} government did not constitute a physical invasion, and thus plaintiffs had no case.

Perhaps the best way to analyze the case and to reconcile these opinions is to return to the origins of common-law nuisance. The common law's protection against unpleasant sounds, smells and sights was to allow owners peace and repose in their homes. The industrialization of the United States meant the proliferation of odors and noise that invaded the comfort of home. Likewise, the invention of the telephone allowed the ringing to breach the domestic solitude. In both cases, the common laws courts found a right to be free from such intrusions (Brillhardt; Macca). 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 homeowner. Each visit causes angst and repeated visits and, 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, violate the homeowners' right to the quiet enjoyment of their home—and correspondingly, give rise to a private cause of action for nuisance.^[FN*]

Moreover, the Powers' allegations here are directly connected to their ability to continue the use and enjoyment of their property. The Powers contend 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 provides a direct connection to the use of the property. Thus, the court is convinced that the Powers' counterclaim alleges a private nuisance.

Of course, here, the counterclaim is short on specifics. The question of nuisance will turn on the number of complaints, the frequency of the complaints, the redundancy of complaints, and the legitimacy of complaints. These facts will be needed to sustain a claim at trial or to survive a summary judgment motion. But for the current purpose, the allegations contained in the counterclaim suffice to plead a case in private nuisance.

Ordered that plaintiff's motion is denied.