Preview
FILED: KINGS COUNTY CLERK 01/10/2023 06:17 PM INDEX NO. 507841/2022
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/10/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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CHERYL TURNER, : Index No. 507841/2022
: Mot. Seq. 1
Plaintiff, :
:
-against- : REPLY AFFIRMATION
:
COMMUNITY COUNSELING AND :
MEDIATION and HAYAA SNEDIKER LLC, :
:
Defendants. :
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TRISTAN C. LOANZON, under penalty of perjury, states the following:
1. I am a partner at Loanzon LLP, the attorney for co-Defendant Community
Counseling and Mediation (“CCM”). and I am attorney in good standing with the bar of the State
of New York. I submit this reply affirmation based on my personal knowledge of the facts and in
support of CCM’s motion to dismiss the Complaint.
2. Note that plaintiff is also suing the previous owner of the Lot, Hayaa Snediker
LLC. There is no evidence that plaintiff has served the co-defendant. CCM bought the Lot from
Hayaa Snediker in February 2020, see Exhibit D, which would give CCM only notice of any
conditions from February 2020, and not from 2014 as plaintiff had alleged in the complaint, Par.
7.
3. Plaintiff fails to satisfy the first element of private nuisance – that the interference
is substantial in nature – because the complaint does not allege that the “condition, vegetation,
and deterioration of the Lot” interfered substantially with her Building. Her opposition argues
that she in fact met the standard “more effectively” by again stating the same allegations in the
complaint. But the conclusory allegations that the nuisance is “undermining the structural
integrity” of the Building and is “requiring significant repair” does not answer the question – let
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alone give CCM notice of the claim – of how CCM’s vacant lot affects the integrity of plaintiff’s
building or imposes costs on plaintiff. See Godfrey v. Spano, 13 N.Y.3d 358, 373 (N.Y. 2009)
(“Although on a motion to dismiss plaintiffs' allegations are presumed to be true and accorded
every favorable inference, conclusory allegations — claims consisting of bare legal conclusions
with no factual specificity — are insufficient to survive a motion to dismiss”). To establish a
private nuisance claim, a plaintiff must “sufficiently allege facts which would raise an inference
that defendant's acts substantially interfered with plaintiff's use or enjoyment of the land…. [I]n
order to establish nuisance the inconvenience and interference complained of must not be
‘fanciful, slight, or theoretical, but certain and substantial, and must interfere with the physical
comfort of the ordinarily reasonable person.’” McNeary v. Niagara Mohawk Power Corp., 286
A.D.2d 522, 524-25 (3d Dep’t 2001) (citing Copart Indus. v. Consolidated Edison Co. of N.Y.,
41 N.Y.2d 564, 570 (1977)).
4. The word “substantial” is part of the first element of private nuisance because a
non-substantial effect is by definition non-actionable.
5. Plaintiff fails to satisfy the second element of private nuisance because the
complaint does not allege that CCM intentionally allowed water to flow from the Lot to the
Building. In opposition, plaintiff claims that the deterioration of CCM’s vacant lot “over nearly a
decade” indicates that the nuisance was intentional. (Stone Aff. ¶ 10). It is not clear what
plaintiff means when she alleged that a “vacant lot” is “deteriorating” given that a vacant lot is
just that: a vacant lot. 1 Moreover, when she alleged that “natural and artificial water,” i.e.,
rainwater, flow from CCM’s lot to her Building, she does (and cannot) allege that CCM
1
Plaintiff conceded in the complaint that, in 2021, CCM “reduced” the vegetation in the vacant
lot. (Compl. ¶ 10).
2
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intentionally directed the rainwater to the Building. Rainwater flows because of gravity and not
because of a property owner’s intent.
6. Plaintiff’s second cause of action for trespass is also insufficient. For trespass,
plaintiff claims, through her attorney’s affirmation in opposition, that she may have some kind of
constructive easement (based on passage of time or adverse possession) on CCM’s side of the
property. (Stone Aff. ¶ 13). As regards the documentary evidence – the deed from ACRIS –
showing the absence of an easement between CCM’s and plaintiff’s properties, plaintiff would
like discovery to determine “whether the survey is correct.” (Id.) Plaintiff’s opposition holds no
merit.
7. First, the complaint does not have an adverse possession cause of action so this
argument in the opposition is a red-herring. To establish adverse possession, plaintiff has to
demonstrate that her possession of the disputed strip was “adverse, exclusive, under a claim of
right, open and notorious, actual and continuous for a period of 10 years.” Sawyer v. Prusky, 71
A.D.3d 1325, 1326 (3d Dep’t 2010) (emphasis added). Even if plaintiff had openly used the
disputed strip, the deed to plaintiff’s property that was submitted in the moving papers,
specifically Exhibit B, shows that plaintiff did not own the Building until April 2019. (To
reiterate, Exhibit B proves that plaintiff has a 4-foot easement but that easement is located
between plaintiff’s property and Lot 5, which is not CCM’s property.)
8. Second, the opposition argues that perhaps the documentary evidence – the deed –
was incorrect in not reflecting an easement between CCM’s and plaintiff’s properties. Simply
saying that the deed may be in incorrect, without any other proof, should not be sufficient to
defeat the motion.
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9. For the above reasons, and those stated in the moving papers, CCM respectfully
request the Court to dismiss Plaintiff’s Complaint in its entirety, and to enter an order that the
Court deems just and proper.
Dated: New York, New York
January 10, 2023
________________________
Tristan C. Loanzon
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Preview
FILED: KINGS COUNTY CLERK 01/10/2023 06:17 PM INDEX NO. 507841/2022 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/10/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------- x CHERYL TURNER, : Index No. 507841/2022 : Mot. Seq. 1 Plaintiff, : : -against- : REPLY AFFIRMATION : COMMUNITY COUNSELING AND : MEDIATION and HAYAA SNEDIKER LLC, : : Defendants. : ---------------------------------- x TRISTAN C. LOANZON, under penalty of perjury, states the following: 1. I am a partner at Loanzon LLP, the attorney for co-Defendant Community Counseling and Mediation (“CCM”). and I am attorney in good standing with the bar of the State of New York. I submit this reply affirmation based on my personal knowledge of the facts and in support of CCM’s motion to dismiss the Complaint. 2. Note that plaintiff is also suing the previous owner of the Lot, Hayaa Snediker LLC. There is no evidence that plaintiff has served the co-defendant. CCM bought the Lot from Hayaa Snediker in February 2020, see Exhibit D, which would give CCM only notice of any conditions from February 2020, and not from 2014 as plaintiff had alleged in the complaint, Par. 7. 3. Plaintiff fails to satisfy the first element of private nuisance – that the interference is substantial in nature – because the complaint does not allege that the “condition, vegetation, and deterioration of the Lot” interfered substantially with her Building. Her opposition argues that she in fact met the standard “more effectively” by again stating the same allegations in the complaint. But the conclusory allegations that the nuisance is “undermining the structural integrity” of the Building and is “requiring significant repair” does not answer the question – let 1 of 4 FILED: KINGS COUNTY CLERK 01/10/2023 06:17 PM INDEX NO. 507841/2022 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/10/2023 alone give CCM notice of the claim – of how CCM’s vacant lot affects the integrity of plaintiff’s building or imposes costs on plaintiff. See Godfrey v. Spano, 13 N.Y.3d 358, 373 (N.Y. 2009) (“Although on a motion to dismiss plaintiffs' allegations are presumed to be true and accorded every favorable inference, conclusory allegations — claims consisting of bare legal conclusions with no factual specificity — are insufficient to survive a motion to dismiss”). To establish a private nuisance claim, a plaintiff must “sufficiently allege facts which would raise an inference that defendant's acts substantially interfered with plaintiff's use or enjoyment of the land…. [I]n order to establish nuisance the inconvenience and interference complained of must not be ‘fanciful, slight, or theoretical, but certain and substantial, and must interfere with the physical comfort of the ordinarily reasonable person.’” McNeary v. Niagara Mohawk Power Corp., 286 A.D.2d 522, 524-25 (3d Dep’t 2001) (citing Copart Indus. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 570 (1977)). 4. The word “substantial” is part of the first element of private nuisance because a non-substantial effect is by definition non-actionable. 5. Plaintiff fails to satisfy the second element of private nuisance because the complaint does not allege that CCM intentionally allowed water to flow from the Lot to the Building. In opposition, plaintiff claims that the deterioration of CCM’s vacant lot “over nearly a decade” indicates that the nuisance was intentional. (Stone Aff. ¶ 10). It is not clear what plaintiff means when she alleged that a “vacant lot” is “deteriorating” given that a vacant lot is just that: a vacant lot. 1 Moreover, when she alleged that “natural and artificial water,” i.e., rainwater, flow from CCM’s lot to her Building, she does (and cannot) allege that CCM 1 Plaintiff conceded in the complaint that, in 2021, CCM “reduced” the vegetation in the vacant lot. (Compl. ¶ 10). 2 2 of 4 FILED: KINGS COUNTY CLERK 01/10/2023 06:17 PM INDEX NO. 507841/2022 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/10/2023 intentionally directed the rainwater to the Building. Rainwater flows because of gravity and not because of a property owner’s intent. 6. Plaintiff’s second cause of action for trespass is also insufficient. For trespass, plaintiff claims, through her attorney’s affirmation in opposition, that she may have some kind of constructive easement (based on passage of time or adverse possession) on CCM’s side of the property. (Stone Aff. ¶ 13). As regards the documentary evidence – the deed from ACRIS – showing the absence of an easement between CCM’s and plaintiff’s properties, plaintiff would like discovery to determine “whether the survey is correct.” (Id.) Plaintiff’s opposition holds no merit. 7. First, the complaint does not have an adverse possession cause of action so this argument in the opposition is a red-herring. To establish adverse possession, plaintiff has to demonstrate that her possession of the disputed strip was “adverse, exclusive, under a claim of right, open and notorious, actual and continuous for a period of 10 years.” Sawyer v. Prusky, 71 A.D.3d 1325, 1326 (3d Dep’t 2010) (emphasis added). Even if plaintiff had openly used the disputed strip, the deed to plaintiff’s property that was submitted in the moving papers, specifically Exhibit B, shows that plaintiff did not own the Building until April 2019. (To reiterate, Exhibit B proves that plaintiff has a 4-foot easement but that easement is located between plaintiff’s property and Lot 5, which is not CCM’s property.) 8. Second, the opposition argues that perhaps the documentary evidence – the deed – was incorrect in not reflecting an easement between CCM’s and plaintiff’s properties. Simply saying that the deed may be in incorrect, without any other proof, should not be sufficient to defeat the motion. 3 3 of 4 FILED: KINGS COUNTY CLERK 01/10/2023 06:17 PM INDEX NO. 507841/2022 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 01/10/2023 9. For the above reasons, and those stated in the moving papers, CCM respectfully request the Court to dismiss Plaintiff’s Complaint in its entirety, and to enter an order that the Court deems just and proper. Dated: New York, New York January 10, 2023 ________________________ Tristan C. Loanzon 4 4 of 4