Opinion
EF002928-2020
01-06-2021
John Falzon, CINDY FALZON, JOSEPH VOELPEL, and DIANNA VOELPEL, Plaintiffs, v. Brian Ford, STEPHANIE FORD, SUNSTARTER SOLAR XXXIV LLC, and SOLAR PROVIDER GROUP LLC, Defendants.
For Plaintiff: Brian H. Brick, Esq., Brick Law PLLC, White Plains, NY For Moving Defendants: Kelly Ann Pressler, Esq., Jacobowitz & Gubits, LLP, Walden, NY
For Plaintiff: Brian H. Brick, Esq., Brick Law PLLC, White Plains, NY For Moving Defendants: Kelly Ann Pressler, Esq., Jacobowitz & Gubits, LLP, Walden, NY Catherine M. Bartlett, J.
The following papers numbered 1 to 5 were read on the motion of defendants Sunstarter Solar XXXIV LLC and Solar Provider Group LLC for summary judgment: Notice of Motion - Affirmation / Exhibits 1-2 Affirmation in Opposition / Exhibits - Memorandum 3-4 Reply Affirmation 5
Upon the foregoing papers it is ORDERED that the motion is disposed of as follows:
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Solar Panel Farm Project
Plaintiffs John and Cindy Falzon and plaintiffs Joseph and Dianna Voelpel are homeowners and next-door neighbors in Minisink, New York. Defendants Brian Ford and Stephanie Ford own eighty-five acres of land directly behind the Falzon and Voelpel properties.
The Fords leased seven of their 85 acres to defendants Sunstarter Solar XXXIV LLC and Solar Provider Group LLC (collectively, the "Solar Defendants") for the construction and long term operation of a "solar panel farm" behind Plaintiffs' homes, approximately fifty (50) feet from their rear property lines. The planned solar panel project was presented to the Minisink Planning Board for review. The Solar Defendants commissioned a visual impact study as part of their application for Planning Board approval to address Plaintiffs' opposition to the project. Plaintiffs allege that (1) the study methodology called for the use of both 24 mm and 50 mm lens photographs; (2) the Solar Defendants took both 24 mm and 50 mm lens photographs, but submitted only the 24 mm photographs without properly notifying Plaintiffs or Minisink officials of the change in methodology; (3) they did so to skew the true visual impact of the project, as the 24 mm lens photograph is a wide-angle image that makes objects seem farther away and less invasive; and (4) the Planning Board members were "visibly surprised and were displeased with [the Solar Defendants'] omission and withholding of the 50 mm lens photographs."
B. Plaintiffs' Complaint and the Solar Defendants' Prior Motion to Dismiss
The Plaintiffs' Complaint asserted three causes of action against the Solar Defendants: (1) intentional misrepresentation; (2) negligence; and (3) private nuisance. The Plaintiffs sought compensatory damages and a permanent injunction against the solar panel project. The Solar Defendants moved pursuant to CPLR §3211(a)(7) to dismiss the Complaint for failure to state a valid cause of action.
By prior Decision and Order dated October 8, 2020, this Court dismissed the cause of action for intentional misrepresentation, writing:
"[A] cause of action for fraud or intentional misrepresentation requires proof 'that the defendant knowingly misrepresented a material fact upon which the plaintiff justifiably relied, causing the plaintiff's damages." Kazmark v. Wasyln, 167 AD3d 1386, 1387 (3d Dept. 2018). In Berenger v. 261 West LLC, 93 AD3d 175 (1st Dept. 2012), the plaintiffs alleged claims for fraud and misrepresentation predicated on alleged omissions in a condominium offering plan as to the location and operation of a cooling tower. The Court dismissed those claims, writing:
Here, it is undisputed that the plaintiffs purchased the unit having previously seen the cooling tower. Thus, the plaintiffs cannot claim to have relied on any failure to depict the cooling tower in the offering plan or architectural plans when they decided to purchase the unit.
Berenger, supra, 93 AD3d at 184. Here, similarly, inasmuch as both the Plaintiffs and the members of the Minisink Planning Board were fully aware of the Solar Defendants' omission of the 50 mm lens photographs from the visual impact study, Plaintiffs cannot plead justifiable reliance upon any misrepresentation by the Solar Defendants in this regard. Moreover, there is no allegation that the Minisink Planning Board has granted approval for the solar panel project based on the allegedly flawed visual impact study. For each of these reasons, the Complaint fails to state a valid cause of action for
intentional misrepresentation. Consequently, the First Cause of Action in the Complaint is dismissed.(Decision and Order dated October 8, 2020)
The Court also dismissed Plaintiffs' claim for common law negligence, writing:
It is hornbook law that the elements of a cause of action for common law negligence are (1) the existence of a duty of care on the part of the defendant running to the plaintiff, (2) a negligent breach of that duty, and (3) damages flowing from the breach. The Complaint against the Solar Defendants pleads none of the elements of common law negligence.(Decision and Order dated October 8, 2020)
"The threshold question in any negligence action is: does defendant owe a legally recognized duty of care to plaintiff?" Hamilton v. Beretta U. S. A. Corp., 96 NY2d 222, 232 (2001). "Without a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm." Id. (quoting Lauer v. City of New York, 95 NY2d 95, 100). Whether any duty exists is, in the first instance, a legal question for the courts to determine. See, Powers ex rel. Powers v. 31 E. 31 LLC, 24 NY3d 84, 94 (2014); Darby v. Compagnie National Air France, 96 NY2d 343, 347 (2001); Waters v. New York City Housing Authority, 69 NY2d 225, 229 (1987).
Under New York law, the approval vel non of site plan applications is within the purview of municipal planning boards, subject to administrative appeal and ultimately to judicial review under Article 78 of the Civil Practice Law and Rules. Property owners who by reason of their proximity to proposed land use projects would thereby suffer actual harm differing from that suffered by the public at large — including harm resulting from the visual impact of the project — have standing to challenge the planning board's determina- tions by means of an Article 78 proceeding. See, Schlemme v. Planning Board of City of Poughkeepsie, 118 AD3d 893, 894-895 (2d Dept. 2014); Cady v. Town of Germantown Planning Board, 184 AD3d 983, 985-986 (3d Dept. 2020); Cady v. Stapf, 91 AD3d 1229, 1230-31 (3d Dept. 2012). So far as this Court can determine, however, New York law does not countenance a parallel scheme whereby aggrieved property owners may also hale site plan applicants into court on common law claims that they breached some amorphous duty of care in presenting their applications to the municipal planning board. Property owners' rights and remedies in this area are governed instead by well established Article 78 jurisprudence.
Thus, Plaintiffs have not demonstrated the existence of any duty of care owed by the Solar Defendants to the Plaintiff homeowners in connection with the said Defendants' application to the Minisink Planning Board. In any event, Plaintiffs do not allege any negligence on the Solar Defendants' part, but rather an intentional misrepresentation in connection with the visual impact study; and as the Minisink Planning Board has not granted approval for the solar panel project based on the allegedly flawed visual impact study, the Complaint alleges no damage flowing from the putative breach. For each of these reasons, the Complaint fails to state a valid cause of action for common law negligence. Consequently, the Second Cause of Action in the Complaint is dismissed.
However, the Court denied the motion for dismissal of Plaintiffs' cause of action for private nuisance. The Court wrote:
The elements of a cause of action 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." Copart Industries, Inc. v. Consolidated Edison Co. of New York, Inc., 41 NY2d 564, 570 (1977); Taggart v. Costabile, 131 AD3d 243, 247 (2d Dept. 2015).
The Solar Defendants claim that Plaintiffs' complaint fails to state a cause of action for private nuisance because (1) there is no present interference with Plaintiffs' property right to use and enjoy land, but only a planned future project still awaiting Planning Board approval; and (2) the proposed project is authorized by the Town code and hence not unreasonable in character. New York law, however, is to the contrary.
1. A Court In Equity May Enjoin A Threatened Prospective Nuisance
In Sweet v. Campbell, 282 NY 146 (1940), plaintiffs brought an action in equity to restrain the use by defendants of certain premises for a funeral church and undertaking establishment. The complaint was dismissed without prejudice to the institution of a new action after the completion of the structure and the commencement of its use for undertaking / funeral purposes. The Court of Appeals reversed, holding:
We need not now consider the subject of nuisance by way of definition and determine whether the proposed use would constitute a private nuisance [cit.om.], or whether the occupation and use of the property would amount to a nuisance under any circumstances regardless of location and surroundings. [cit.om.] It is sufficient, at least, at this time to point out that the facts set up in the complaint, if established by competent and adequate proof upon a trial of the action, would furnish the foundation upon which a finding, if made, might be sustained, to the effect that the proposed occupation and use of the premises by defendants are unwarranted and unreasonable and constitute an actionable injury to the plaintiffs and a detriment to their properties. The complaint, on its face, states facts sufficient to constitute a cause of action.Sweet v. Campbell, supra, 282 NY at 148.
In other words, a complaint in equity for private nuisance is not rendered insufficient as a matter of law simply by virtue of the fact that the alleged nuisance is only in prospect and not actually existing. As the Court of Appeals recognized in People ex rel. Leonard v. Elmore, 256 NY 489 (1931), although "courts of law can only reach existing nuisances," "[c]ourts of equity can not only prevent nuisances that are threatened and before irreparable mischief ensues, but arrest or abate those in progress, and by perpetual injunction protect the public against them in future." Id., 256 NY at 495. As one Court explained:
[I]t seems to defy common sense to defer trial of the issues presented [i.e., regarding an alleged nuisance in prospect] to a future date, for possible future abatement, after completion of construction of the magnitude proposed. It is quite possible that plaintiffs may well be able, on the basis of known factors, to show at this time what human experience would irresistibly indicate to be the necessary result of operation of the facilities intended to be built. And, should plaintiffs not be able so to demonstrate at a trial, that worry about the future would be lifted from defendants. See, Sweet v. Campbell, 282 NY 146....Hillside Property Owners Ass'n, Inc. v. Salanter Akiba Riverdale Academy, 40 AD2d 964 (1st Dept. 1940).
Contrary to the Solar Defendants' assertion, then, the Plaintiffs' cause of action in equity for private nuisance is not rendered legally insufficient simply by reason of the fact that there is no present interference with Plaintiffs' property right to use and enjoy their land, but only a planned future project still awaiting Planning Board approval.
2. That The Proposed Project Is Lawful Under The Minisink Code Does Not Obviate A Finding Of Private Nuisance
In Sweet v. Campbell, supra, the defendants in answer to the plaintiff's complaint for private nuisance contended that the proposed use of their premises for a funeral and undertaking establishment was not forbidden by zoning regulations, and that they had secured a permit from the proper authorities for such location and use. Accepting the defendants' contentions as true, the Court of Appeals held that "even so, the right of plaintiffs to challenge, in an action in equity, the location of the funeral establishment and proposed use of the property on the ground that it constitutes a nuisance still remains." Id., 282 NY at 149. See also, Murray v. Young, 97 AD2d 958 (4th Dept. 1983); Jones v. Chapel Hill, 273 AD 510 (1st Dept. 1948). As the Court of Appeals explained in Little Joseph Realty, Inc. v. Town of Babylon, 41 NY2d 738 (1977):
The law of nuisance and that of zoning both relate to the use of property, but they each protect a different interest. So a use which fully complies with a zoning ordinance may still be enjoined as a nuisance (Sweet v. Campbell, 282 NY 146...)...Little Joseph Realty, Inc. v. Town of Babylon, supra, 41 NY2d at 744-745.
Nuisance is based upon the maxim that "a man shall not use his property so as to harm another [cit.om.]. It traditionally required that, after a balancing of risk-utility considerations, the gravity of the harm to a plaintiff be found to outweigh the social usefulness of a defendant's activity. [cit.om.]....
Zoning is far more comprehensive. Its design is, on a planned basis, to serve as "a vital tool for maintaining a civilized form of existence" for the benefit and welfare of an entire community [cit.om.]....
Contrary to the Solar Defendants' assertion, then, the Plaintiffs' cause of action in equity for private nuisance is not rendered legally insufficient simply by reason of the fact that the Defendants' proposed solar panel project is lawful under the Minisink Code.
3. Conclusion
Therefore, the Solar Defendants' motion to dismiss Plaintiffs' cause of action for private nuisance and request for a permanent injunction is denied. (Decision and Order dated October 8, 2020)
C. The Solar Defendants' Motion for Summary Judgment
The Solar Defendants answered Plaintiffs' Complaint and promptly moved for summary judgment dismissing the last remaining claim against them — Plaintiffs' cause of action for private nuisance. The Solar Defendants assert that Plaintiffs' claim is no longer viable because the application for approval of the solar farm panel project has been withdrawn and is no longer pending before the Minisink Planning Board. Plaintiffs acknowledge that their request for injunctive relief against the alleged nuisance is now moot, but nevertheless assert that they retain a viable claim in equity for monetary relief (not damages at law) for expenses they incurred in hiring experts to oppose the Solar Defendants' application for planning board approval.
II. LEGAL ANALYSIS
A. Supreme Court's Authority To Award Equitable Monetary Relief
"The Supreme Court in this State is a court of general original jurisdiction in law and equity (see NY Const. Art. 6, §7, subd. a), and, in conformity with its all inclusive powers, the court is authorized in any action to render such judgment as is appropriate to the proofs received in conformity with the allegations of the pleadings, irrespective of the nature of the relief demanded, subject, of course, in a proper case, to the imposition of such terms as may be necessary to protect the rights of any party. (See CPLR 3017[a])." Kaminsky v. Kahn, 23 AD2d 231, 236 (1st Dept. 1965).
Citing "the statutory abolishment of 'the distinction between actions at law and suits in equity, and the forms of those actions and suits' (CPLR 103[a])," the Kaminsky Court observed that "with due regard to the defendant's right to a jury trial, unless waived, and upon such terms and proceedings as may be proper, the court, following a trial of an action wherein plaintiff has demanded equitable relief, may award the plaintiff a recovery of money damages where...such a recovery is supported by the plaintiff's allegations and proofs." Id., 23 AD2d at 236-237. More importantly, for present purposes, the Kaminsky Court held that where the plaintiff has "establish[ed] a case entitling him to invoke the equitable powers of the court," the court has the power to "render such relief as is appropriate to the wrongs of the defendant," including an award of monetary relief. Id., at 237 (emphasis added). It is this authority — the court's power to award "equitable" monetary relief — that Plaintiffs invoke here.
The Court of Appeals defined the scope of judicial authority to award equitable monetary relief in Doyle v. Allstate Ins. Co., 1 NY2d 439 (1956):
If... the plaintiff succeeds in proving that he is entitled to equitable relief, equity may grant damages in addition to or as an incident of some other special equitable relief or, where the granting of equitable relief appears to be impossible or impracticable, equity may award damages in lieu of the desired equitable remedy. "It is a familiar principle that court of equity, having obtained jurisdiction of the parties and the subject matter of the action, will adapt its relief to the exigencies of the case. It may order a sum of money to be paid to the plaintiff, and give him a personal judgment therefor, when that form of relief becomes necessary in order to prevent a failure of justice, and when it is for any reason impracticable to grant the specific relief demanded." Valentine v. Richardt,126 NY 272, 277....Doyle, supra, 1 NY2d at 443 (emphasis added).
So, it is clear that a money judgment damages could have been awarded in the Markle action had the Markles established their right to equitable relief...
Here, then, the Solar Defendants' withdrawal of their planning board application for the solar panel farm project, and the resultant mooting of Plaintiffs' demand for injunctive relief, does not in and of itself obviate a claim for equitable monetary relief. See, Van Allen v. New York Elevated R. Co., 144 NY 174 (1894). The Van Allen Court wrote:
The jurisdiction of equity depends upon the position of the plaintiff and the relief to which he is entitled at the time the suit is brought. The measure of the relief is adapted to the situation at the time of the decree. When the jurisdiction has once attached, it is not affected by changes which occur subsequently, so long as any cause of action survives,
upon the facts alleged, though such changes may affect the nature and extent of the relief to which the party may be entitled.Id., 144 NY at 179. See also, Miller v. Edison Electric Illuminating Co., 184 NY 17, 26-27 (1906) (Gray, J., dissenting).
However, as the passages quoted above from Doyle, Van Allen and Kaminsky all make perfectly clear, the court's power to award equitable monetary relief depends on the continuing viability of some cause of action as of the time of trial. To this issue we now turn.
B. Plaintiffs No Longer Have A Viable Claim For Private Nuisance Against The Solar Defendants
The elements of a cause of action 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." Copart Industries, Inc. v. Consolidated Edison Co. of New York, Inc., 41 NY2d 564, 570 (1977); Taggart v. Costabile, 131 AD3d 243, 247 (2d Dept. 2015).
The Solar Defendants contend that since the planning board application for the solar panel farm project has been withdrawn, Plaintiffs cannot establish an essential element of their cause of action for private nuisance, to wit, "an interference substantial in nature" with their property right to use and enjoy their land.
Under New York law:
The interference may take the form of (1) damage to plaintiff's land, buildings or vegetation, [cit.om.], (2) annoyance, inconvenience or discomfort to one who has the necessary property interest, [cit.om.], or (3) the threat of future substantial damage to the plaintiff's property, [cit.om.]. However, damage to the property is not required, [cit.om.]. The interference must be substantial, not trifling, material and actual not fanciful or sentimental, [cit.om.].
The standard by which substantiality is measured is whether the situation would disturb the physical comfort of normal persons in the community, [cit.om.], not whether plaintiff because of an illness or idiosyncracy has in fact been discomforted... [cit.om.]....2A NY PJI3d 3:16, at 150-151 (2020) (citing cases). Since actual damage to the Plaintiffs' property is not required for a private nuisance to occur, the Solar Defendants' presentation of the solar farm panel project application to the Minisink Planning Board could arguably meet the legal requirement for an "interference" in the sense that it constituted an "annoyance, inconvenience or discomfort to one who has the necessary property interest" or a "threat of future substantial damage to the plaintiff's property." See, id. However, the Solar Defendants insist that as a matter of law the mere presentation of the planning board application cannot meet the legal standard of "substantiality", to wit, that "the situation would disturb the physical comfort of normal persons in the community." See, id.
Plaintiffs do not contend otherwise. They instead deny that they are required to satisfy the legal standard of "substantiality" in order to present a viable claim for equitable monetary relief. The Court cannot agree. In the absence of a "substantial" interference the Plaintiffs do not possess a valid cause of action for private nuisance. Moreover, the Plaintiffs' remaining claims against the Solar Defendants have already been dismissed. (See, Decision and Order dated October 8, 2020) Consequently, there is no basis for any award of equitable monetary relief against the Solar Defendants. See, Doyle v. Allstate Ins. Co., supra; Van Allen v. New York Elevated R. Co., supra; Kaminsky v. Kahn, supra.
For this reason alone, Plaintiffs' claim for private nuisance must be dismissed. However, assuming arguendo this claim were still viable, it would not afford a basis for recovery of expenses Plaintiffs incurred in hiring experts to oppose the Solar Defendants' application for planning board approval. Contrary to Plaintiffs' suggestion, this would not constitute "equitable" monetary relief but damages at law upon their cause of action for the Solar Defendants' alleged intentional misrepresentation to the Planning Board, which claim has already been dismissed. To this final issue we now turn.
C. The Damages Plaintiffs Seek Do Not Constitute "Equitable Restitution"
Citing United States Supreme Court precedents, Plaintiffs assert that recovery from the Solar Defendants of expenses Plaintiffs incurred in hiring experts to oppose the application for planning board approval constitute a form of "equitable restitution." However, under that authority, the relief which Plaintiffs seek constitutes not equitable restitution but damages at law.
In Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558 (1990), the U.S. Supreme Court wrote:
In this case, the only remedy sought is a request for compensatory damages representing backpay and benefits. Generally, an action for money damages was "the traditional form of relief offered in the courts of law." Curtis v. Loether, 415 U.S. 189, 196...(1974).
This Court has not, however, held that "any award of monetary relief must necessarily be 'legal' relief." Ibid. ....Nonetheless, because we conclude that the remedy respondents seek has none of the attributes that must be present before we will find an exception to the general rule and characterize damages as equitable, we find that the remedy sought by respondents is legal.
First, we have characterized damages as equitable where they are restitutionary, such as in "action[s] for disgorgement of improper profits," Tull [v. United States, 481 U.S. 412] at 424....See also Curtis v. Loether, supra, 415 U.S., at 197...; Porter v. Warner Holding Co., 328 U.S. 395, 402...(1946). The backpay sought be respondents is not money wrongfully held by the Union, but wages and benefits they would have received from McLean had the Union processed the employees' grievances properly. Such relief is not restitutionary.
Second, a monetary award "incidental to or intertwined with injunctive relief" may be equitable. Tull, supra, 481 U.S., at 424....Because respondents seek only money damages, this characteristic is clearly absent from the case. Chauffeurs, Teamsters and Helpers, Local No. 391, supra, 494 U.S. at 570-571 (emphasis added).
Here, similarly, the requested monetary relief is not "incidental to or intertwined with injunctive relief" because the Solar Defendants' withdrawal of their application for planning board approval has mooted Plaintiffs' request for injunctive relief.
The monetary relief sought here is not restitutionary in nature. Restitution is a remedy "limited to 'restoring the status quo and ordering the return of that which rightfully belongs to the [plaintiff]'". Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State of New York, 146 AD2d 212, 218 (3d Dept. 1989) (quoting Tull v. United States, supra, and Porter v. Warner Holding Co., supra).
As the Supreme Court observed in Chauffeurs, disgorgement of improper profits constitutes equitable restitution. Id., 494 U.S. at 570. Backpay sought from an employer in a Title VII case "would generally be restitutionary in nature", but backpay sought from a union for breach of the duty of fair representation instead constitutes legal damages. Id., at 571. Here, the Solar Defendants are not in possession of improper profits or of anything rightfully belonging to the Plaintiffs for which the Court may make an order of restitution. As Plaintiffs frankly admit, they seek to hold the Solar Defendants accountable for the expert expenses they incurred to counter the Defendants' alleged misrepresentation to the Planning Board. That, if anything, constitutes a claim for damages at law on a cause of action which the Court has already dismissed.
It is therefore
ORDERED, that the motion of defendants Sunstarter Solar XXXIV LLC and Solar Provider Group LLC for summary judgment is granted, and the Plaintiffs' complaint as against said Defendants is dismissed.
The foregoing constitutes the decision and order of the Court. Dated: January 6, 2021 E N T E R Goshen, New York HON. CATHERINE M. BARTLETT, A.J.S.C.