V. Pittman, Bay Shore, NY, for appellant.
Nostrand & Martin, Amityville, NY (David S. Desmond of
counsel), for respondents.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, HECTOR D.
LASALLE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action, inter alia, to recover damages for trespass and
private nuisance and for injunctive relief, the plaintiff
appeals from an order of the Supreme Court, Suffolk County
(Pastoressa, J.), dated May 30, 2014, which granted the
defendants' motion pursuant to CPLR 3211(a) to dismiss
the amended complaint.
that the order is affirmed, with costs.
Supreme Court properly granted those branches of the
defendants' motion which were pursuant to CPLR 3211(a)(7)
to dismiss the first and second causes of action, which
alleged a private nuisance, as the amended complaint failed
to state a cause of action to recover damages for a private
nuisance. The plaintiff failed to sufficiently allege an
interference with her right to use and enjoy land,
substantial in nature, intentional or negligent in origin,
unreasonable in character, and caused by the defendants'
conduct (see Schulz v Dattero, 104 A.D.3d 831, 833;
Ward v City of New York, 15 A.D.3d 392, 392;
Kaplan v Incorporated Vil. of Lynbrook, 12 A.D.3d
410, 412). The plaintiff's allegation that the
defendants' actions interfered with the use and enjoyment
of her backyard and bulkhead is conclusory and vague, and
does not satisfy the pleading requirements (see McNeary v
Niagara Mohawk Power Corp., 286 A.D.2d 522, 525).
Supreme Court also properly granted that branch of the
defendants' motion which was pursuant to CPLR 3211(a)(3)
to dismiss the plaintiff's third cause of action, which
was to enjoin alleged violations of the Code of the Town of
Islip and restrictive covenants and to recover damages
incidental to the alleged violations, as the plaintiff lacks
standing to bring such a cause of action. Generally, to
maintain a private action at common law to enjoin a zoning
violation, a plaintiff must establish that he or she has
standing to do so by demonstrating that special damages were
sustained due to the defendant's activities. To establish
special damages, it is necessary to show that there is some
depreciation in the value of the premises as real property
arising from the forbidden use (see Zupa v Paradise Point
Assn., Inc., 22 A.D.3d 843; Santulli v Drybka,
196 A.D.2d 862, 863). The plaintiff here failed to show that
there was a depreciation of the character of the immediate
neighborhood, or a depreciation in the value of her premises.
as stated previously, the plaintiff lacks standing to enforce
restrictive covenants regarding the defendants' property.
The language in the deed from the original grantor indicates
that the covenants were not imposed for the benefit of the
owner of neighboring land. Therefore, the plaintiff may not
enforce the covenants as a third-party beneficiary (cf.
Nature Conservancy v Congel, 253 A.D.2d 248, 251;
Zamiarski v Kozial, 18 A.D.2d 297, 299). Moreover,
these covenants were not part of a common development scheme
created for the benefit of all property owners within the
subject development (cf. Fader v Taconic Tract Dev.,
LLC, 128 A.D.3d 887; Hidalgo v 4-34-68, Inc.,
117 A.D.3d 798, 800; Dever v DeVito, 84 A.D.3d 1539,
the Supreme Court properly, in effect, directed dismissal
pursuant to CPLR 3211(a)(3) of the plaintiff's fourth
cause of action, which alleged trespass, as the plaintiff
lacks standing to bring such a cause of action. The essential
elements of a cause of action sounding in trespass are the
intentional entry into the land of another without
justification or permission (see Boring v Town of
Babylon,147 A.D.3d 892; Julia Props., LLC v
Levy,137 A.D.3d 1224). A trespass cause of action may
only be maintained by one entitled to possess the subject
property. Ownership alone is insufficient (see Cornick v
Forever Wild Dev. Corp.,240 A.D.2d 980, 981). The