        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

624
CA 10-00063
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, AND SCONIERS, JJ.


JOSEPH MATTELIANO AND CHRIS VOGELSANG,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

JOSEPH J. SKITKZI AND MELISSA NEAL,
DEFENDANTS-APPELLANTS.


MYERS, QUINN & SCHWARTZ, LLP, WILLIAMSVILLE (JAMES I. MYERS OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (PATRICK J. MACKEY OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Erie County (Frederick J. Marshall, J.), entered August 4,
2009. The order and judgment, inter alia, awarded plaintiffs money
damages against defendants.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking, inter
alia, a declaration regarding the nature and scope of an easement
existing on their property for the benefit of the owners of a parcel
of property that is currently owned by defendants. Plaintiffs also
sought relief regarding the alleged private nuisance created by
defendants’ open overhead garage door facing the property owned by
plaintiffs. Defendants appeal from an order and judgment entered
March 5, 2009 (hereafter, March order and judgment). We note at the
outset that defendants failed to appeal from the final order and
judgment entered August 4, 2009 (hereafter, August order and
judgment). By order entered November 8, 2010, this Court granted
defendants’ motion to vacate the dismissal of their appeal from the
March order and judgment and deemed the appeal to be a premature
appeal taken from the August order and judgment, “to the extent that
it only brings up for review the [March] order and judgment” (see CPLR
5520 [c]).

     Defendants contend that Supreme Court erred in determining that
the open garage door constitutes a nuisance. “In order to prevail
upon a cause of action for private nuisance, the plaintiff must
demonstrate (1) an interference substantial in nature, (2) intentional
in origin, (3) unreasonable in character, (4) with a person’s property
                                 -2-                           624
                                                         CA 10-00063

right to use and enjoy land, (5) caused by another’s conduct” (Vacca v
Valerino, 16 AD3d 1159, 1160 [internal quotation marks omitted]; see
Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570;
Hitchcock v Boyack, 277 AD2d 557, 558). Further, the interference
“must not be fanciful, slight or theoretical, but certain and
substantial, and must interfere with the physical comfort of the
ordinarily reasonable person” (Bove v Donner-Hanna Coke Corp., 236 App
Div 37, 40; see Balunas v Town of Owego, 56 AD3d 1097, 1098, lv denied
12 NY3d 703). Under the circumstances of this case, we conclude that
the court erred in determining that defendants’ open garage door
constituted a private nuisance.

     We nevertheless conclude that defendants are not entitled to
reversal or modification of the August order and judgment insofar as
it brings up for review the March order and judgment. By order and
judgment entered May 22, 2009, the court granted plaintiffs’ cross
motion seeking to re-erect a fence and gate along the line where their
property meets that of defendants, but the court stayed enforcement of
that order and judgment pending defendants’ appeal from the March
order and judgment. By order entered July 14, 2010, the court then
permitted plaintiffs to re-erect the fence and gate. Thus, the
court’s determination in the March order and judgment that the open
garage door constituted a private nuisance is moot (see generally
Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714). In any event, we
note that “a landowner burdened by an express easement of ingress and
egress may . . . gate it or fence it off, so long as the easement
holder’s right of passage is not impaired” (Lewis v Young, 92 NY2d
443, 449), and thus the court’s determination with respect to the
private nuisance was not a necessary predicate to granting plaintiffs
the right to re-erect the subject fence and gate.

     We have reviewed defendants’ remaining contentions and conclude
that they are without merit.




Entered:   June 10, 2011                        Patricia L. Morgan
                                                Clerk of the Court
