Opinion
720 CA 22-00812
11-17-2023
Eileen C. DRAKE, Daniel R. Drake and Eileen C. Drake, as Temporary Administrator of the Estate of Lillian Coats, Deceased, Plaintiffs-Respondents-Appellants, v. VILLAGE OF LIMA and Village of Lima Department of Public Works, Defendants-Appellants-Respondents.
WEBSTER SZANYI LLP, BUFFALO (SHANNON BRAE VANDERMEER OF COUNSEL), FOR DEFENDANTS-APPELLANTS-RESPONDENTS. KNAUF SHAW LLP, ROCHESTER (MELISSA M. VALLE OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS-APPELLANTS.
WEBSTER SZANYI LLP, BUFFALO (SHANNON BRAE VANDERMEER OF COUNSEL), FOR DEFENDANTS-APPELLANTS-RESPONDENTS.
KNAUF SHAW LLP, ROCHESTER (MELISSA M. VALLE OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS-APPELLANTS.
PRESENT: SMITH, J.P., CURRAN, BANNISTER, OGDEN, AND NOWAK, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting those parts of the motion seeking dismissal of the second and fourth causes of action, and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages arising from defendants’ alleged failure to properly maintain and operate a sewer main, which allowed a blockage of grease and other objects to form in the sewer main, causing sewage to backflow into plaintiffs’ home. Plaintiffs’ amended complaint asserted causes of action for, inter alia, negligence, trespass, public nuisance, private nuisance, and inverse condemnation or de facto taking and sought injunctive and other relief. Defendants moved pursuant to CPLR 3211 to dismiss, inter alia, plaintiffs’ causes of action for trespass, public nuisance, private nuisance, and inverse condemnation or de facto taking; the amended complaint insofar as it asserted a claim for damages arising from personal injury to Lillian Coats; all claims against defendant Village of Lima Department of Public Works (Department); and plaintiffs’ claim for injunctive relief. Defendants now appeal and plaintiffs cross-appeal from an order that, inter alia, granted those parts of the motion with respect to the causes of action for public nuisance and inverse condemnation or de facto taking and plaintiffs’ claim for injunctive relief. Defendants contend on their appeal that Supreme Court erred in denying the motion with respect to the claims against the Department inasmuch as the Department lacks the capacity to be sued. We reject that contention. Although defendants are correct that administrative units of municipal entities may lack the capacity to be sued (see Andrews, Pusateri, Brandt, Shoemaker & Roberson, P.C. v. Niagara County Sewer Dist. No. 1 , 71 A.D.3d 1374, 1375, 897 N.Y.S.2d 809 [4th Dept. 2010], lv dismissed in part & denied in part 15 N.Y.3d 741, 906 N.Y.S.2d 803, 933 N.E.2d 201 [2010] ), defendants failed to establish that the Department is such an entity.
Defendants contend that the court erred in denying that part of the motion seeking to dismiss plaintiffs’ claim for damages arising from personal injury to plaintiffs’ decedent, Lillian Coats, inasmuch as that theory of liability was not included in the notice of claim. We reject that contention. The notice of claim includes "information sufficient to enable the [municipality] to investigate the claim" ( O'Brien v. City of Syracuse , 54 N.Y.2d 353, 358, 445 N.Y.S.2d 687, 429 N.E.2d 1158 [1981] ) inasmuch as it identifies Coats as a claimant and asserts that the claimants suffered loss of quality of life and emotional distress (cf. Clare-Hollo v. Finger Lakes Ambulance EMS, Inc. , 99 A.D.3d 1199, 1201, 952 N.Y.S.2d 350 [4th Dept. 2012] ; see generally Hart v. City of Buffalo , 218 A.D.3d 1140, 1149, 193 N.Y.S.3d 560 [4th Dept. 2023] ).
We agree with defendants, however, that the court erred in denying the motion with respect to plaintiffs’ second cause of action, for trespass, and we therefore modify the order accordingly. Among other elements, a claim for trespass requires "an intentional entry" ( Marone v. Kally , 109 A.D.3d 880, 882, 971 N.Y.S.2d 324 [2d Dept. 2013], lv denied 24 N.Y.3d 911, 2014 WL 7152294 [2014] ; see National Fuel Gas Distrib. Corp. v. PUSH Buffalo [People United for Sustainable Hous.] , 104 A.D.3d 1307, 1309, 962 N.Y.S.2d 559 [4th Dept. 2013] ). Intent, in this context, "is defined as intending the act which produces the unlawful intrusion, where the intrusion is an immediate or inevitable consequence of that act" ( Marone , 109 A.D.3d at 883, 971 N.Y.S.2d 324 [internal quotation marks omitted]; see Ivancic v. Olmstead , 66 N.Y.2d 349, 352, 497 N.Y.S.2d 326, 488 N.E.2d 72 [1985], rearg denied 66 N.Y.2d 1036, 499 N.Y.S.2d 1031, 489 N.E.2d 1304 [1985], 67 N.Y.2d 754, 500 N.Y.S.2d 103, 490 N.E.2d 1229 [1986], cert denied 476 U.S. 1117, 106 S.Ct. 1975, 90 L.Ed.2d 658 [1986] ). Here, accepting the allegations in the amended complaint as true (see Sassi v. Mobile Life Support Servs., Inc. , 37 N.Y.3d 236, 239, 154 N.Y.S.3d 290, 175 N.E.3d 1246 [2021] ), we conclude that the amended complaint does not state a cause of action for trespass inasmuch as it failed to allege an intentional entry onto plaintiffs’ property (see generally Marone , 109 A.D.3d at 882-883, 971 N.Y.S.2d 324 ).
Defendants contend that the court also erred in denying the motion with respect to plaintiffs’ fourth cause of action, for private nuisance. Plaintiffs’ private nuisance cause of action is based on the same facts, alleges the same wrongs, and seeks the same damages as their negligence cause of action, and we thus agree with defendants that the private nuisance cause of action should have been dismissed as duplicative of the negligence cause of action (see generally Olney v. Town of Barrington , 180 A.D.3d 1364, 1365-1366, 118 N.Y.S.3d 898 [4th Dept. 2020] ; 517 Union St. Assoc. LLC v. Town Homes of Union Sq. LLC , 156 A.D.3d 1187, 1191, 68 N.Y.S.3d 173 [3d Dept. 2017] ; Trulio v. Village of Ossining , 153 A.D.3d 577, 579, 59 N.Y.S.3d 449 [2d Dept. 2017] ). We therefore further modify the order accordingly.
Addressing the cross-appeal, we reject plaintiffs’ contention that the court erred in granting that part of the motion seeking dismissal of their sixth cause of action, for inverse condemnation or de facto taking, insofar as it was based on the deprivation of personal property. Assuming, arguendo, that such a cause of action could be based on deprivation of personal property (see generally O'Brien , 54 N.Y.2d at 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 ), we conclude that the court properly determined that the amended complaint does not state that cause of action inasmuch as the allegations therein refer to "Property," which the amended complaint defined solely as plaintiffs’ real property.
Contrary to plaintiffs’ further contention, the court did not err in determining that the amended complaint fails to state a cause of action for public nuisance. In contrast to private nuisance, which involves interference with a particular person's right to enjoy his or her property, public nuisance requires interference with a public right common to all (see Andersen v. University of Rochester , 91 A.D.2d 851, 851, 458 N.Y.S.2d 404 [4th Dept. 1982], appeal dismissed 59 N.Y.2d 968 [1983] ; see generally Williams v. Beemiller, Inc. , 103 A.D.3d 1191, 1192, 962 N.Y.S.2d 834 [4th Dept. 2013] ). Although plaintiffs’ third cause of action alleged that the blockage in the sewer "interfered with the rights common to all," the amended complaint's factual allegations discussed the harm to plaintiffs and their property only and presented no factual allegation supporting the claimed interference with a public right. "[C]onclusory allegations—claims consisting of bare legal conclusions with no factual specificity—are insufficient to survive a motion to dismiss" ( Godfrey v. Spano , 13 N.Y.3d 358, 373, 892 N.Y.S.2d 272, 920 N.E.2d 328 [2009] ; see Fika Midwifery PLLC v. Independent Health Assn., Inc. , 208 A.D.3d 1052, 1056, 173 N.Y.S.3d 761 [4th Dept. 2022] ; Medical Care of W. N.Y. v. Allstate Ins. Co. , 175 A.D.3d 878, 879, 107 N.Y.S.3d 529 [4th Dept. 2019] ).
Finally, we reject plaintiffs’ contention that the court erred in dismissing their claim for injunctive relief. Plaintiffs have failed to plead facts demonstrating that they would experience irreparable injury in the absence of injunctive relief and instead have claimed a loss that is calculable in monetary terms (see Caruso v. Bumgarner , 120 A.D.3d 1174, 1175-1176, 992 N.Y.S.2d 102 [2d Dept. 2014] ; cf. Friscia v. Village of Geneseo , 197 A.D.3d 848, 850-851, 152 N.Y.S.3d 745 [4th Dept. 2021] ).