Accordingly, any arguments by plaintiffs directed at the denial of their motion seeking summary judgment on their negligence claim are not properly before us (see Matter of 61 Crown St., LLC v City of Kingston Common Council, 217 A.D.3d 1144, 1145 [3d Dept 2023]). We turn first to plaintiffs' cause of action alleging a private nuisance, which requires that they establish "an interference (1) substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act" (DelVecchio v Collins, 178 A.D.3d 1336, 1337 [3d Dept 2019] [internal quotation marks and citations omitted]). Generally, "except for the issue of whether the plaintiff possesses the requisite property interest, each of the remaining elements is a question for the jury, unless the evidence is undisputed" (Schillaci v Sarris, 122 A.D.3d 1085, 1087 [3d Dept 2014] [internal quotation marks, brackets and citations omitted]; see Torre v Town of Tioga, 190 A.D.3d 1202, 1205 [3d Dept 2021]; DelVecchio v Collins, 178 A.D.3d at 1337).
Defendants appeal. Given that defendants answered the complaint, their motion was a CPLR 3212 motion for summary judgment, despite being based in part upon CPLR 3211(a) grounds (seeDelVecchio v. Collins, 178 A.D.3d 1336, 1336 n., 116 N.Y.S.3d 414 [2019] ).
Defendant appeals. Because defendant filed an answer, his subsequent motion "was a CPLR 3212 motion for summary judgment that was based in part upon the CPLR 3211(a) grounds asserted in the answer" (DelVecchio v. Collins , 178 A.D.3d 1336, 1336 n, 116 N.Y.S.3d 414 [2019] [internal quotation marks, brackets and citations omitted] ). We affirm.
Turning to plaintiff's cross motion, plaintiff contends that Supreme Court erred in dismissing its negligence cause of action as duplicative of its private nuisance claim, asserting that defendant acted both negligently and intentionally in extending the slope without JRB approval and in failing to address the flooding of Sentinel Pines once it was notified that flooding had occurred. A private nuisance claim "may be established by proof of intentional action or inaction that substantially and unreasonably interferes with other people's use and enjoyment of their property" (O'Connor v Shultz, 166 A.D.3d 1104, 1104-1105 [2018] [internal quotation marks and citations omitted]; see DelVecchio v Collins, 178 A.D.3d 1336, 1336-1337 [2019]). "[S]uch a claim [is] actionable upon proof that [the] defendant['s] invasion was either intentional, negligent or reckless, or otherwise involved abnormally dangerous activities"
Turning to plaintiff's cross motion, plaintiff contends that Supreme Court erred in dismissing its negligence cause of action as duplicative of its private nuisance claim, asserting that defendant acted both negligently and intentionally in extending the slope without JRB approval and in failing to address the flooding of Sentinel Pines once it was notified that flooding had occurred. A private nuisance claim "may be established by proof of intentional action or inaction that substantially and unreasonably interferes with other people's use and enjoyment of their property" ( O'Connor v. Shultz, 166 A.D.3d 1104, 1104–1105, 87 N.Y.S.3d 681 [2018] [internal quotation marks and citations omitted]; seeDelVecchio v. Collins, 178 A.D.3d 1336, 1336–1337, 116 N.Y.S.3d 414 [2019] ). "[S]uch a claim [is] actionable upon proof that [the] defendant['s] invasion was either intentional, negligent or reckless, or otherwise involved abnormally dangerous activities" ( 517 Union St. Assoc. LLC v. Town Homes of Union Sq. LLC, 156 A.D.3d at 1191, 68 N.Y.S.3d 173 ). " ‘An invasion of another's interest in the use and enjoyment of land is intentional when the actor (a) acts for the purpose of causing it; or (b) knows that it is resulting or is substantially certain to result from his [or her] conduct’ " ( O'Connor v. Shultz, 166 A.D.3d at 1105, 87 N.Y.S.3d 681, quoting Copart Indus. v. Consolidated Edison Co. of N.Y., Inc., 41 N.Y.2d 564, 571, 394 N.Y.S.2d 169, 362 N.E.2d 968 [1977] [citations omitted]), "or becomes aware that the conduct is causing substantial interference and nevertheless continues it" ( Cangemi v. Town of E. Hampton, 374 F Supp. 3d 227, 236 [E.D.N.Y.2019] ).
As defendants' motion was made after joinder of issue, it was properly a motion for summary judgment that was based on a CPLR 3211 (a) ground asserted in their answer (see State of New York v Konikov, 182 AD3d 750, 751 n 1 [2020], lv denied ___ NY3d ___ [Feb. 11, 2021]; DelVecchio v Collins, 178 AD3d 1336, 1336 n [2019]). Initially, plaintiff contends that the motion for summary judgment should have been denied for failure to submit copies of the pleadings with the motion (see CPLR 3212 [b]).
Plaintiffs initially argue that Supreme Court erred in dismissing their cause of action for private nuisance. "A private nuisance claim may be established by proof of intentional action or inaction that substantially and unreasonably interferes with other people's use and enjoyment of their property" ( DelVecchio v. Collins, 178 A.D.3d 1336, 1336, 116 N.Y.S.3d 414 [2019] [internal quotation marks, brackets and citations omitted] ). Plaintiffs' complaint alleges that defendants paved a significant area of their front yard and proceeded to park cars and trucks thereon, and, as a result, their view of oncoming traffic was significantly hindered when they used their driveway.
In order to be successful on a cause of action for nuisance, a plaintiff must be able to demonstrate that there was interference of a substantial nature, of intentional origin, and unreasonable character, with plaintiff's property right to use and enjoy his/her land, which was caused by defendant's conduct or failure to act (see Hitchcock v. Boyack, 277 A.D.2d 557, 2000 NY Slip Op 09286 [3d Dept 2000]). Pursuant to Broxmeyer v. United Capital Corp, "[e]xcept for the issue of whether the plaintiff has the requisite property interest, each of the other elements is a question for the jury, unless the evidence is undisputed" (79 A.D.3d 780, 782, 2010 NY Slip Op 09204 [2d Dept 2010], citing Wienberg v. Lombardi, 217 A.D.2d 579 [2d Dept 1995] [internal quotations omitted]; see also DelVecchio v. Collins, 178 A.D.3d 1336, 2019 NY Slip Op 09344 [3d Dept 2019] [ordinarily, whether a use constitutes private nuisance turns on a question of fact]; Weinberg v. Lombardi, 217 A.D.2d 579 [2d Dept 1995]; Overocker v. Madigan, 113 A.D.3d 924, 2014 NY Slip Op 00158 [3d Dept 2014] [the nature of the interference with adjoining property remained issue of fact]; Jenkins v. Etlinger, 78 A.D.2d 705 [3d Dept 1980] [amount of fill existing on adjoining land remained issue of fact]; see also Burk v. High Point Homes 22 Misc.2d 492, 494-95 [defendant's erection of a retaining wall which resulted in water accumulation on defendant's land and washing loose dirt, sand and mud onto plaintiff's properties "spell[d] nuisance").
The elements of a claim for private nuisance are: "(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act" (61 W. 62 Owners Corp. v. CGM EMP LLC, 77 A.D.3d 330, 334 [1st Dept 2010], affd as mod and remanded 16 N.Y.3d 822 [2011], citing Copart Indus. v Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 570 (1977)). "Although nuisance is often discussed in terms of intentional conduct, such a claim is actionable upon proof that the defendant's invasion was either intentional, negligent or reckless, or otherwise involved abnormally dangerous activities" (DelVecchio v Collins, 178 A.D.3d 1336, 1337 [3d Dept 2019] [internal quotation marks and alterations omitted]).
Turning to plaintiff's cross motion, plaintiff contends that Supreme Court erred in dismissing its negligence cause of action as duplicative of its private nuisance claim, asserting that defendant acted both negligently and intentionally in extending the slope without JRB approval and in failing to address the flooding of Sentinel Pines once it was notified that flooding had occurred. A private nuisance claim "may be established by proof of intentional action or inaction that substantially and unreasonably interferes with other people's use and enjoyment of their property" (O'Connor v Shultz, 166 A.D.3d 1104, 1104-1105 [2018] [internal quotation marks and citations omitted]; see DelVecchio v Collins, 178 A.D.3d 1336, 1336-1337 [2019]). "[S]uch a claim [is] actionable upon proof that [the] defendant['s] invasion was either intentional, negligent or reckless, or otherwise involved abnormally dangerous activities" (517 Union St. Assoc. LLC v Town Homes of Union Sq. LLC, 156 A.D.3d at 1191).