Schillaci v. Sarris, 122 A.D.3d 1085 (N.Y. App. Div. 2014). · Go Syfert
Schillaci v. Sarris, 122 A.D.3d 1085 (N.Y. App. Div. 2014). Cases Citing This Book View Copy Cite
G Cite
cited 3× by 3 distinct cases, 2015–2017 · …no appeal lies from the denial of a motion to reargue at p. 1087
26 citation events (26 in the last 25 years) across 2 distinct courts.
Strongest positive: Vacation Vil. Homeowners Assn., Inc. v. Town of Fallsburg (nyappdiv, 2024-12-12)
Treatment trajectory · 2015 → 2026 · click a year to view as-of
2015 2020 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
discussed Cited as authority (rule) Vacation Vil. Homeowners Assn., Inc. v. Town of Fallsburg
N.Y. App. Div. · 2024 · confidence medium
Viewing the evidence in the light most favorable to the nonmovant, as we must, we find that the record reveals "conflicting proof as to the substantiality and unreasonableness of defendant['s] alleged interference with plaintiffs' use and enjoyment of their property" ( Schillaci v Sarris , 122 AD3d at 1088; see Parris-Kofi v Redneck, Inc. , 204 AD3d 1180, 1181 [3d Dept 2022]; see also Burdick v Tonoga, Inc. , 191 AD3d 1220 , 1224 [3d Dept 2021]).
discussed Cited as authority (rule) Mentiply v. Foster
N.Y. App. Div. · 2022 · confidence medium
Given the same lack of evidence of hostility, plaintiff's claim that she enjoys a prescriptive easement over the disputed portion of the footpath was also properly dismissed ( see Auswin Realty Corp. v Klondike Ventures, Inc. , 163 AD3d 1107 , 1109 [2018]; Millington v Kenny & Dittrich Amherst, LLC , 124 AD3d 1108, 1110 [2015]; Zutt v State of New York , 50 AD3d 1133, 1133-1134 [2008]; Nellis v Countryman , 153 App Div 500, 501 [1912]; compare Rosenzweig v Howlan , 166 AD3d 1146 , 1148-1149 [2018]). [FN6] Supreme Court also properly awarded judgment in defendants' favor as to their trespass co…
discussed Cited as authority (rule) Torre v. Town of Tioga
N.Y. App. Div. · 2021 · confidence medium
Similarly, on the nuisance cause of action, the issue of whether defendants substantially interfered with plaintiffs' right to use and enjoy their property is generally a factual question for a jury to resolve ( see Schillaci v Sarris , 122 AD3d 1085, 1087 [2014]; Gedney Commons Homeowners Assn., Inc. v Davis , 85 AD3d 854, 855 [2011]).
discussed Cited as authority (rule) Altman v. Shaw
N.Y. App. Div. · 2020 · confidence medium
Accordingly, these contentions are not properly before us, as our authority to search the record and grant summary judgment to a nonmoving party "extends only to a cause of action or issue that is the subject of the motions before the court" ( Schillaci v Sarris , 122 AD3d 1085, 1088 [2014] [internal quotation marks, ellipsis and citation omitted]).
discussed Cited as authority (rule) Duffy v. Baldwin
N.Y. App. Div. · 2020 · confidence medium
As such, defendants' sale of the property may limit the damages available to plaintiffs, but it does not mandate dismissal of the complaint ( see CPLR 1018; Schillaci v Sarris , 122 AD3d 1085, 1088 [2014]).
discussed Cited as authority (rule) Vogle v. North Country Prop. Mgt., LLC
N.Y. App. Div. · 2019 · confidence medium
Footnotes Footnote 1: As no appeal lies from the denial of a motion to reargue, the appeal and cross appeal from the latter order must be dismissed ( see Schillaci v Sarris , 122 AD3d 1085, 1087 [2014]; see also CPLR 5701 [a] [2] [viii]).
discussed Cited as authority (rule) Matter of Nissan Motor Acceptance Corp v. All County Towing
N.Y. App. Div. · 2018 · confidence medium
Footnote 2: Although respondent's CPLR 5531 statement indicates that it is also appealing a February 2017 order denying its motion to reargue, a notice of appeal from that order is not included in the record on appeal ( see Matter of Brennan v Anesi , 283 AD2d 693 , 694 n 2 [2001]) and, in any event, no appeal lies from the denial of a motion to reargue ( see Schillaci v Sarris , 122 AD3d 1085, 1087 [2014]; Matter of Nowlin v Schriver , 278 AD2d 631, 632 [2000], lv denied 96 NY2d 711 [2001]).
discussed Cited as authority (rule) Diaz v. State of New York
N.Y. App. Div. · 2017 · confidence medium
Preliminarily, inasmuch as “no appeal lies from the denial of a motion to reargue” (Schillaci v Sarris, 122 AD3d 1085, 1087 [2014]), claimant’s appeal from the Court of Claims’ November 2016 order must be dismissed (see Murray Bresky Consultants, Ltd v New York Compensation Manager’s Inc., 106 AD3d 1255, 1261-1262 [2013]).
cited Cited as authority (rule) Matter of Lavender v. Zoning Board of Appeals of theTown of Bolton
N.Y. App. Div. · 2016 · confidence medium
To the extent that petitioner’s motion for “reconsideration” was deemed one to reargue, the denial thereof is not appealable (see Schillaci v Sarris, 122 AD3d 1085, 1087 [2014]).
cited Cited as authority (rule) Neroni v. Follender
N.Y. App. Div. · 2016 · confidence medium
As for the remaining issues, to the extent that plaintiff’s motion sought reargument, the denial of such a motion is not appealable (see Schillaci v Sarris, 122 AD3d 1085, 1087 [2014]).
discussed Cited as authority (rule) Schulz v. Silver
N.Y. App. Div. · 2015 · confidence medium
Inasmuch as “no appeal lies from the denial of a motion to reargue” (Schillaci v Sarris, 122 AD3d 1085, 1087 [2014]), plaintiff’s appeal from Supreme Court’s October 2014 order must be dismissed (see Murray Bresky Consultants, Ltd v New York Compensation Manager’s Inc., 106 AD3d 1255, 1261-1262 [2013]; Bell v New York State Higher Educ.
discussed Cited as authority (rule) Schulz v. Silver
N.Y. App. Div. · 2015 · confidence medium
Inasmuch as “no appeal lies from the denial of a motion to reargue” (Schillaci v Sarris, 122 AD3d 1085, 1087 [2014]), plaintiff’s appeal from Supreme Court’s October 2014 order must be dismissed (see Murray Bresky Consultants, Ltd v New York Compensation Manager’s Inc., 106 AD3d 1255, 1261-1262 [2013]; Bell v New York State Higher Educ.
discussed Cited as authority (rule) Pilatich v. Town of New Baltimore
N.Y. App. Div. · 2015 · confidence medium
With that proof in mind, a private nuisance claim does not require an actual intrusion upon property by the tortfeasor and 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” (Nemeth v K-Tooling, 100 AD3d 1271, 1272 [2012]; see Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564 , 570 [1977]; Schillaci v Sarris, 122 AD3d 1085, 1087 [2014]).
discussed Cited as authority (rule) Pilatich v. Town of New Baltimore
N.Y. App. Div. · 2015 · confidence medium
With that proof in mind, a private nuisance claim does not require an actual intrusion upon property by the tortfeasor and 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” (Nemeth v K-Tooling, 100 AD3d 1271, 1272 [2012]; see Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564 , 570 [1977]; Schillaci v Sarris, 122 AD3d 1085, 1087 [2014]).
discussed Cited as authority (rule) Science Applications International Corporation v. Environmental Risk Solutions, LLC
N.Y. App. Div. · 2015 · confidence medium
To the extent that Lehigh also appeals from the court’s October 15, 2012 order denying its subsequent motion to reargue, no appeal lies therefrom (see Schillaci v Sarris, 122 AD3d 1085, 1087 [2014]; Matter of Yager v Massena Cent.
cited Cited as authority (rule) Lindine v. Iasenza
N.Y. App. Div. · 2015 · confidence medium
Turning to the motion for leave to reargue and for leave to amend the complaint, the denial of the former relief was not appealable (see Schillaci v Sarris, 122 AD3d 1085, 1087 [2014]).
discussed Cited as authority (rule) Matter of Aurigemma v. New York State Department of Taxation and Finance
N.Y. App. Div. · 2015 · confidence medium
As a starting point, respondents appear to have advanced these very arguments in the context of their motion to reargue before Supreme Court — the denial of which is not appealable (see Schillaci v Sarris, 122 AD3d 1085, 1087 [2014]).
cited Cited as authority (rule) Boice v. Hirschbihl
N.Y. App. Div. · 2015 · confidence medium
Based on the record before us, dismissal of plaintiffs nuisance and trespass claims was also warranted (see Schillaci v Sarris, 122 AD3d 1085, 1087-1088 [2014]).
cited Cited as authority (rule) Jones v. Castlerick, LLC
N.Y. App. Div. · 2015 · confidence medium
A court has the authority to search the record and grant summary judgment to a nonmoving party (see CPLR 3212 [b]; Schillaci v Sarris, 122 AD3d 1085, 1088 [2014]).
cited Cited as authority (rule) Jones v. Castlerick, LLC
N.Y. App. Div. · 2015 · confidence medium
A court has the authority to search the record and grant summary judgment to a nonmoving party (see CPLR 3212 [b]; Schillaci v Sarris, 122 AD3d 1085, 1088 [2014]).
discussed Cited "see" DelVecchio v. Collins
N.Y. App. Div. · 2019 · signal: accord · confidence high
Turning to the first cause of action, "[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" ( Pilatich v Town of New Baltimore , 170 AD3d 1463 , 1464 [2019] [internal quotation marks and citations omitted]; accord Schillaci v Sarris , 122 AD3d 1085, 1087 [2014]).
discussed Cited "see, e.g." Ranney v. Tonawanda City Sch. Dist.
N.Y. App. Div. · 2018 · signal: see also · confidence low
The issue whether a defendant's use of land constitutes a private nuisance generally turns on questions of fact that include the degree of interference and the reasonableness of the use under the circumstances ( see Schaefer v Dehauski , 50 AD3d 1502, 1503 [4th Dept 2008]; see also Schillaci v Sarris , 122 AD3d 1085 , 1087 [3d Dept 2014]).
Retrieving the full opinion text from the archive…
Theresa Schillaci
v.
George Sarris
Appellate Division of the Supreme Court of the State of New York.
Nov 14, 2014.
122 A.D.3d 1085
Clark, Egan, Peters, Rose, Stein.
Cited by 21 opinions  |  Published
Egan Jr., J.

Appeal from an order of the Supreme Court (Nolan Jr., J.), entered October 26, 2012 in Saratoga County, which, among other things, partially denied defendants’ motions for summary judgment dismissing the complaint.

At all times relevant, plaintiffs and defendants each owned property located on Woodside Drive in the Town of Clifton Park,[*1086] Saratoga County; plaintiffs purchased their property in 1991, and defendants purchased the property next door to plaintiffs in 1999. According to plaintiffs, defendants thereafter expanded an existing pond located on their property in order to create a nature preserve for passing waterfowl. Defendants’ efforts in this regard were found to be in violation of the local zoning code (Sarris v Town of Clifton Park, 38 AD3d 981, 982-983 [2007], lv denied 8 NY3d 814 [2007]), and defendant George Sarris was fined accordingly (Town of Clifton Park v Sarris, 81 AD3d 1207, 1208 [2011]).

In the interim, plaintiffs commenced this action in 2005 alleging — insofar as is relevant here — that the large number of waterfowl attracted to defendants’ property constituted a private nuisance and, further, that the resulting noise and excrement amounted to a continuing trespass. Following joinder of issue, plaintiffs moved by order to show cause for a preliminary injunction, seeking to enjoin defendants from keeping or feeding wild waterfowl on their property. Defendants, in turn, successfully moved to amend their answer, wherein they asserted counterclaims for intentional infliction of emotional distress, defamation and setoff. Supreme Court (Ferradino, J.) issued a temporary restraining order precluding defendants from feeding any nonresident fowl on their property and, following a lengthy hearing, granted plaintiffs’ request for a preliminary injunction in December 2006 — contingent upon the posting of a $10,000 undertaking. Specifically, Supreme Court enjoined defendants from “maintaining a feeding station for both wild and domesticated [waterfowl] and poultry on their property” — except as to those waterfowl under George Sarris’s care and treatment in his capacity as a wildlife rehabilitator — and, further, directed defendants to remove “all domestic or wild fowl or poultry” from their property. The parties debate the extent to which defendants complied with this directive and, in 2008, plaintiffs sold their property and relocated.

In March 2009, plaintiffs moved for summary judgment, and defendants cross-moved for similar relief. Supreme Court (Ferradino, J.) denied both motions. Thereafter, in March 2011, George Sarris, proceeding pro se, moved for summary judgment dismissing plaintiffs’ complaint; plaintiffs opposed this motion and cross-moved for, among other things, summary judgment as to their private nuisance cause of action. In May 2012, defendant Joy Sarris (George Sarris’s spouse), moved for, among other things, summary judgment dismissing plaintiffs’ complaint, which plaintiffs again opposed. By order entered October 26, 2012, Supreme Court (Nolan Jr., J.), among other things, denied[*1087] the parties’ respective motions as to plaintiffs’ private nuisance and trespass causes of action, granted defendants’ motions for summary judgment dismissing plaintiffs’, third cause of action (premised upon water intrusion into plaintiffs’ basement), granted plaintiffs’ request to release the previously posted undertaking and dismissed defendants’ counterclaims. Defendants separately — and unsuccessfully — moved to reargue and now appeal from Supreme Court’s October 2012 order.

Preliminarily, we note that although defendants each purport to appeal from Supreme Court’s denial of their respective motions to reargue, the record before us does not contain a notice of appeal in this regard; in any event, no appeal lies from the denial of a motion to reargue (see Wells Fargo, N.A. v Levin, 101 AD3d 1519, 1520 [2012], lv dismissed 21 NY3d 887 [2013]). Turning to the merits, defendants — as so limited by their briefs — initially contend that Supreme Court erred in denying their motions for summary judgment dismissing plaintiffs’ first and second causes of action sounding in private nuisance and trespass. We disagree.

“Private nuisance is established by proof of intentional action or inaction that substantially and unreasonably interferes with other people’s use and enjoyment of their property” (Nemeth v K-Tooling, 100 AD3d 1271, 1272 [2012] [citation omitted]; see Ivory v International Bus. Machines Corp., 116 AD3d 121, 131 [2014], lv denied 23 NY3d 903 [2014]; Overocker v Madigan, 113 AD3d 924, 926 [2014]). As a private nuisance claim involves the right to use and enjoy the land in question, no actual intrusion onto the plaintiffs property is required (see Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 101 AD3d 853, 856 [2012]) and no actual damage to the property itself need be shown (see Ivory v International Bus. Machines Corp., 116 AD3d at 131). Further, “[e]xcept 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” (Gedney Commons Homeowners Assn., Inc. v Davis, 85 AD3d 854, 855 [2011] [internal quotation marks and citation omitted]; accord Broxmeyer v United Capital Corp., 79 AD3d 780, 782-783 [2010]; see Futerfas v Shultis, 209 AD2d 761, 763 [1994]). Trespass, on the other hand, involves “an intentional entry onto the land of another without justification or permission” (Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 101 AD3d at 855; see Marone v Kally, 109 AD3d 880, 882 [2013]; Spellburg v South Bay Realty, LLC, 49 AD3d 1001, 1002 [2008]).

In support of their motions for summary judgment, defend[*1088] ants did nothing more than argue that plaintiffs failed to plead — and ultimately will be unable to prove — compensable damages and, therefore, dismissal of plaintiffs’ first and second causes of action sounding in private nuisance and trespass was warranted. Even assuming, without deciding, that defendants’ assessment of plaintiffs’ pleadings and examination before trial testimony is accurate, the case law makes clear that the moving party must affirmatively demonstrate its entitlement to summary judgment “and does not meet its burden [in this regard merely] by noting gaps in its opponent’s proof” (Malamas v Toys “R” Us-Delaware, Inc., 94 AD3d 1438, 1438 [2012] [internal quotation marks and citation omitted]; see Overocker v Madigan, 113 AD3d at 925; DiBartolomeo v St. Peter’s Hosp. of the City of Albany, 73 AD3d 1326, 1327 [2010]). Similarly, the fact that plaintiffs have sold their residence does not compel dismissal of their claims, as they still potentially are entitled to either temporary nuisance damages, as measured by the reduction in the usable value of their property (see Doin v Champlain Bluffs Dev. Corp., 68 AD3d 1605, 1613 [2009], lv dismissed 14 NY3d 832 [2010]), or — at the very least — nominal damages (see Taverni v Broderick, 111 AD3d 1197, 1200 [2013]; Doin v Champlain Bluffs Dev. Corp., 68 AD3d at 1613). Finally, as the record as a whole otherwise contains conflicting proof as to the substantiality and unreasonableness of defendants’ alleged interference with plaintiffs’ use and enjoyment of their property and/or defendants’ actual intrusion thereon, Supreme Court properly denied defendants’ motions for summary judgment dismissing plaintiffs’ first and second causes of action.

Defendants next contend — again, as so limited by their respective briefs — that Supreme Court erred in sua sponte dismissing their first counterclaim for intentional infliction of emotional distress.* Although CPLR 3212 (b) — cited by Supreme Court here — indeed permits a court to search the record and grant summary judgment to a nonmoving party, Supreme Court’s authority in this regard extends “only . . . to a cause of action or issue that is the subject of the motions before the court” (Dunham v Hilco Constr. Co., 89 NY2d 425, 430 [1996]; see Scott v Beth Israel Med. Ctr., Inc., 41 AD3d 222, 223-224 [2007]). Stated another way, “[a] motion for summary judgment addressed to one claim or defense does not provide a basis for[*1089] the court to search the record to grant summary judgment on an unrelated claim or defense” (Frank v City of New York, 211 AD2d 478, 479 [1995]; see Sadkin v Raskin & Rappoport, 271 AD2d 272, 273 [2000]).

Here, there is no question that the parties’ various motion papers could have been drafted with greater clarity. That said, inasmuch as defendants expressly requested that Supreme Court “establish[ ] a schedule for discovery concerning defendants’ counterclaims” and asked that “the case [be] set down for trial,” we cannot conclude that defendants sought summary judgment as to their first counterclaim. Similarly, despite counsel’s representations in plaintiffs’ brief on appeal, the record does not reflect that plaintiffs affirmatively sought dismissal of this counterclaim in the context of their cross motion for summary judgment, and the record as a whole otherwise fails to disclose that the parties charted a course for summary judgment in this regard (see generally Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; James v Bain, 86 AD3d 675, 676 [2011]). Accordingly, we agree that Supreme Court erred in sua sponte dismissing defendants’ first counterclaim. Moreover, based upon our review of, among other things, the parties’ respective affidavits, we cannot say that this counterclaim is amenable to summary resolution in any event.

We also find merit to defendants’ argument that Supreme Court erred in releasing the undertaking previously imposed in connection with the preliminary injunction granted to plaintiffs. CPLR 6312 (b) provides, in relevant part, that “prior to the granting of a preliminary injunction, the plaintiff shall give an undertaking in an amount to be fixed by the court, that the plaintiff, if it is finally determined that he or she was not entitled to an injunction, will pay to the defendant all damages and costs which may be sustained by reason [there]of.” As the Court of Appeals has explained, “[a] preliminary injunction, unless sooner abrogated, continues in force until judgment in the action is rendered. So long as it continues the bond cannot be canceled” (J. A. Preston Corp. v Fabrication Enters., 68 NY2d 397, 405 [1986] [citations omitted]). Contrary to plaintiffs’ assertion, the fact that this Court has held that defendants are precluded by the relevant zoning code from maintaining a nature preserve for waterfowl on their property (Sarris v Town of Clifton Park, 38 AD3d at 982-983) does not constitute a final “determination on the merits of whether the [preliminary] injunction was erroneously granted” (Bonded Concrete, Inc. v Town of Saugerties, 42 AD3d 852, 856 [2007]). Pending such determination, Supreme Court erred in releasing the undertaking.[*1090] Defendants’ remaining contentions, to the extent not specifically addressed, are either not properly before us or have been examined and found to be lacking in merit.

Peters, RJ., Stein, Rose and Clark, JJ., concur.

Ordered that the order is modified, on the law, without costs, by reversing so much thereof as dismissed defendants’ first counterclaim for intentional infliction of emotional distress and released plaintiffs’ undertaking; said counterclaim and undertaking reinstated; and, as so modified, affirmed.

Although George Sarris broadly asserts that Supreme Court erred in dismissing “defendants’ counterclaims,” he — as well as his spouse — only substantively address the dismissal of their first counterclaim. Accordingly, we deem any argument as to the dismissal of defendants’ second and third counterclaims to be abandoned (see Roohan v First Guar. Mtge., LLC, 97 AD3d 891, 892 [2012]).